CGST RULES NOTIFICATION
35/2019
Seeks to extend the last date for furnishing FORM GST CMP-08 for the quarter April -June 2019 till 31.08.2019
HIGH COURT CASES
2019-TIOL-1626-HC-PATNA-GST
Jai Bhawani Construction Vs UoI
GST - Petitioners moved the High court stating that they had participated in the tender process prior to coming into force of the GST Act, 2017, when Bihar VAT Act, 2005 was in force and applicable in relation to the contracts in question - According to the petitioners, after coming into force of the GST Act, 2017 it was incumbent upon the Works Department of the Government of Bihar to suitably amend Clause '35' of the conditions for reimbursement of levy/taxes if levied after receipt of tenders, as in absence of suitable amendments thereof, the petitioners were being made liable to pay GST without there being any provision for reimbursement of the liabilities falling upon them by virtue of the implementation of the GST Act, 2017.
Held: When the matters were called, counsel for the State, has produced before this court the two bound volumes of the Schedule of Rates, 'SOR', one is showing the rate analysis prior to implementation of the 'GST' whereas another one contains the rate analysis after taking into consideration the 'GST' after 1st of July, 2017 - It is evident from the 'SOR' that now the implication of the 'GST' has been considered and after treating the effect of the 'GST' the total basic rate applicable after coming into force of the 'GST' has been fixed - Counsel for the petitioner(s) as well as State agree with formulation of the 'SOR' taking note of the effect of the 'GST' now no issue remains with regard to the implications of the 'GST' on the contract works executed subsequently i.e. after coming into force of the 'GST' - In view of the above, this court is of the considered opinion that now nothing remains for adjudication by this court as the grievance of the petitioners as framed in these writ applications are to be taken to have been redressed – Petitions/Writ applications disposed of: High Court
- Petition disposed of: PATNA HIGH COURT
2019-TIOL-1625-HC-AHM-GST
Mohmmad Hanif Mohmmad Ismail Shaikh Vs CST
GST - Petitioner praying for a direction to quash and set aside the action of applying seal to the premises of the petitioner - After considering the submissions, liberty granted to the writ applicant to make appropriate application under section 76(6) of the CGST Act for the release of the goods so seized on the provisional basis upon execution of a bond and furnishing of a security - Petition disposed of: High Court [para 4]
- Petition disposed: GUJARAT HIGH COURT
2019-TIOL-1624-HC-AHM-GST
Intas Pharmaceuticals Ltd Vs UoI
GST - Refund of unutilized ITC - It appears that the Commissioner has overlooked the issue with regard to Transitional Cenvat Credit of Rs.79,89,56,035/- which was availed upto 30.06.2017 and was transferred as CGST - Notice be issued to the respondents returnable on 16th October, 2019 - in the meantime, no coercive recovery towards the refund amount: High Court [para 4, 6]
Notice issued: GUJARAT HIGH COURT
2019-TIOL-1623-HC-AHM-GST
RK Imaging Vs State Of Gujarat
GST - Petition filed seeking setting aside of the notice issued for confiscation of goods and conveyances and levy of penalty u/s 130 of the Act - As on date, the vehicle as well as the machine is in custody of the authorities - It appears that in the case on hand, proceedings came to be initiated straight-way under Section 130 of the GST Act - The confiscation proceedings are pending as on date, however, it is not in dispute that the writ applicant has deposited amount of Rs.3,32,144/- towards tax and penalty.
Held: Court is examining the larger issue as regards Section 129 and Section 130 of the GST Act - The batch of writ applications is to come up for final hearing on 7th August, 2019 - Having regard to the fact that the goods involved in the case on hand is a sonography machine and the same is lying with the authorities past more than one month, Bench is of the view that the same should be released subject to the final outcome of this petition: High Court [para 4, 5]
- Interim relief granted: GUJARAT HIGH COURT
2019-TIOL-1590-HC-MUM-GST
Bramha Corp Ltd Vs State of Maharashtra
Luxury Tax - Petitioner seeks a direction to the Respondent State of Maharashtra to honour its commitment to grant luxury tax exemption under the Act of 1987 for the period 5 April 2017 to 31 March 2027 - Petitioner contends that this waiver was an incentive for the petitioner to establish hotel within the State of Maharashtra, however, upon introduction of GST Act, 2017, the luxury tax was subsumed in GST and thus the benefit granted to the petitioner under the eligibility/entitlement certificate dated 5 April 2017 and 22 June 2016 could not be given effect to.
Held: A similar issue had come up before the Bench in the case of Adlabs Entertainment Ltd. which dealt with entertaintent tax waiver under the erstwhile regime before the introduction of GST and the High Court had vide its order dated 21 st December 2018 - 2018-TIOL-2933-HC-MUM-GST directed the State government to constitute a high level committee to consider the said petitioner's representation as has been done by some other States and consequently the high level Committee had by its report dated 6 th March 2019 recommended to refund the quantum of SGST paid by the petitioner during the period of incentive as per the Entitlement Certificate issued to them - Respondents do not dispute that the facts in this case are similar/identical to those in the case of Adlabs Entertainment Ltd. (supra) - The only distinction being that the waiver sought is of luxury tax and in the earlier case, the waiver was of entertainment tax - If the Committee report has been accepted, the State Government should take a policy decision so that the benefit can be extended to all similarly situated parties - For the purpose of taking instructions, AGP for the State, seeks time - petition is adjourned by a period of two weeks to be listed along with Original Side Writ Petition No.3027 of 2018 - to be heard on 30 July 2019: HC [para 2 to 7]
- Petition adjourned : BOMBAY HIGH COURT
AAAR CASES
2019-TIOL-58-AAAR-GST
Sabre Travel Network India Pvt Ltd
GST - AAR has held that marketing, promotion and distribution services provided by the applicant to Sabre APAC is subject to tax under the provisions of the GST Act - appeal to AAAR.
Held: Entire gamut of activities of appellant is in the nature of composite supply, of which intermediary services is the principal supply - as regards services provided by appellant to their client Sabre APAC, whether the same is export or otherwise, Authority does not have jurisdiction to decide the place of supply of service which is one of the pre-requisites to determine the export of services in terms of s.2(6) of the IGST Act and hence no order can be passed on the same - AAR ruling modified: AAAR
- Appeal disposed of: AAAR
2019-TIOL-57-AAAR-GST
HP India Sales Pvt Ltd
GST - Appellant supplies Indigo Press printing ink (Electro Ink) bundled along with supply of ancillaries comprising of oil, binary ink developer, bip, blanket, print imaging plate and other machine products - They had sought a ruling on the classification of ink supplied along with consumables and determination of the time and value of supply of printing ink with consumables under the Indigo Press contract - AAR has held that supply of ElectroInk with consumables is a mixed supply - appeal to AAAR.
Held: In a composite supply, the two or more taxable supplies have to be naturally bundled and one of the indicators of ‘naturally bundled' supply is that it should be an industry practice - appellant has given no evidence that the program given is an industry practice - the fact that the appellant offers his customers the option of a tier programme does not make the same an industry practice - also, what is more important is that the products are to be used on a HP printing machine and, therefore, for the best printing, only HP products have to be used - such requirement does not at all make it a composite supply as it has an element of compulsion in it whereas there is no place for compulsion in a composite supply - no reason to interfere with the order of AAR - Appeal is dismissed: AAAR
- Appeal dismissed: AAAR
2019-TIOL-56-AAAR-GST
Crown Beers India Pvt Ltd
GST - AAR had held that the job work which is a service provided by PIL is liable to be taxed under GST - appeal to AAAR.
Held: Activities performed by PIL on the goods of the appellant are in the nature of job work and accordingly attract 18% GST - contention of the appellant that all the activities under consideration i.e brewing, bottling and supplying products are in relation to beer which is classifiable under item 2203 of the CTA, 1975 and, hence liable to 5% GST in terms of entry 26(f) bearing heading 9988 of 11/2017-CTR is untenable because only food and food products of chapters 1 to 22 are eligible for this exemption and although there is no definition of food and food products in the GST Act, the apex Court has in the case of Parle Exports (P) Ltd. has held that non-alcoholic beverages were not eligible to exemption as food products - that everything consumed by human cannot be considered as food or food products for the purpose of exemption under GST and it would never have been the intention of the law to exempt expensive item like ‘alcoholic liquor' under the category of food and food products even though the same is for human consumption - apex court decision in Dilip Kumar [2018-TIOL-302-SC-CUS-CB] also relied upon - benefit of exemption as claimed is not available to alcoholic liquor for human consumption - AAR ruling upheld and appeal dismissed: AAAR
- Appeal dismissed: AAAR
2019-TIOL-55-AAAR-GST
BHUTORIA REFRIGERATION PVT LTD
GST - AAR had held that Fan Coil Unit (FCU) is covered under HSN Code 8415 instead of 8418 as claimed by the applicant - appeal to AAAR
Held: FCU is a part of the air conditioning system and does not have anything common with refrigerating unit - Heading 8418 does not include ‘Air conditioning systems', therefore, authority is unable to agree with the contention of the appellant that FCU is covered under Heading 8418 - AAR order upheld and appeal is dismissed: AAAR
- Appeal dismissed: AAAR
2019-TIOL-54-AAAR-GST
Bajaj Finance Ltd
GST - AAR has held that ‘Bounce charges' collected by the appellant in case of dishonour of cheque/ECS/NACH or any other electronic or clearing mandate by customers amounts to supply of services under sr. no. 5(e) of Schedule II to the CGST Act and is, therefore, liable to GST - appeal to AAAR
Held: Bounce charges collected is not on account of ‘interest' for the delayed payment of the consideration for their supply but for dishonour of the repayment instruments such as bouncing of the cheques issued by the borrowers or the failure of the ECS for non-availability of sufficient fund in the borrower's account - Further, appellant is recovering separate amount at the fixed rate of interest under the head of ‘default interest' as quoted in the loan agreement on the delayed payment of the EMI by borrowers - Bounce charges are, therefore, not covered in the interest meant for the purpose of exemption and thereby not entitled for the exemption as claimed - no reason to interfere with the order of the AAR - Appeal dismissed: AAAR
- Appeal dismissed: AAAR
2019-TIOL-53-AAAR-GST
Bajaj Finance Ltd
GST - AAR held that penal interest/penalty charged by appellant amounts to supply of services under sr. no. 5(e) of Schedule II to the GST Act and is, therefore, liable to GST - appeal to AAAR.
Held: Appellant has tried to play with words and coined a new theory of interpreting the law - it is evident from the construction of the entry 5(e) that it contains three expressions and all three expressions namely "agreeing to the obligation to refrain from an act; or to tolerate an act or a situation; or to do an act” are separated with a semi-colon followed by word “or” - it shows that the semicolon and “or” separate the above three expressions showing that they are not inextricably connected - therefore, the theory of interpretation coined out by the appellant by connecting the group of words of first expression “agreeing to obligation” with rest of the two expressions is not the correct legal interpretation - Very activity of tolerating act or situation of delay in payment of EMI is covered under clause 5(e) of the Schedule II - expression ‘to tolerate an act or situation' is clearly distinct and separate - therefore, the group of words ‘agreeing to the obligation' from the first expression of clause 5(e) mandating for agreement and obligation are not applicable to the expression ‘to tolerate an act or situation' - accordingly, the penal charges/penalty recovered by appellant from their borrowers on account of delay in payment of EMI by borrowers are adequately covered under clause 5(e) of the Schedule II of the CGST Act and will attract GST - AAR ruling upheld and appeal dismissed: AAAR
Appeal dismissed: AAAR
AAAR CASES
2019-TIOL-51-AAAR-GST
RMKV Fabrics Pvt Ltd
GST - In the mattter of classification of Salwar/Chudidar sets, top semi-stitched, but bottom not stitched and dupatta fabrics cut from bales/thans, AAR had held that the same is classifiable as ‘made up articles' under tariff heading 6211 depending upon material - attracts tax CGST @2.5% if sale value does not exceed Rs.1000 per piece and CGST @6% if sale value exceeds Rs.1000 per piece; in the matter of Salwar/Chudidar sets, top fully stitched but bottom not stitched and dupatta fabrics cut from bales/thans, AAR held that the same is classifiable as ‘made up articles' under tariff heading 6211 depending upon material - attracts tax CGST @2.5% if sale value does not exceed Rs.1000 per piece and CGST @6% if sale value exceeds Rs.1000 per piece and in the matter of Salwar/Chudidar sets, top neck-worked, bottom not stitched and dupatta fabrics cut from bales/thans, AAR held that the same is classifiable as ‘made up articles' under tariff heading 6211 depending upon material - attracts tax CGST @2.5% if sale value does not exceed Rs.1000 per piece and CGST @6% if sale value exceeds Rs.1000 per piece - Appellant is before the AAAR contending that these Salwar/Churidar Sets are nothing but three different pieces of fabrics cut from the lengthy fabrics which has to be ultimately stitched into a complete Salwar/Churidar Set and hence are required to be classified as "Fabrics", based on the constituent materials .
Held: Chapter covers unfinished or incomplete articles of the kind described in the heading provided the products have the essential character of the articles concerned - Appellate authority find that the sets which are in approximate shape/outline of the finished goods, more so with one piece in ready to wear condition, have the essential character of 'finished goods' and in view of interpretative Rule 2(a) are classified as 'Kurta and Salwar with or without dupatta' under CTH 6211 - importantly, sets can be used only as 'Churidars' and cannot be used as any other garments or termed as 'fabrics' - From the Circular No 80/54/2018-GST dt 31.12.2018, it is evident that to be a garment/made up, the product has to be more than mere fabric - It is further commented that Made up article in Chapter 63 covers pieces which have undergone some working, such as hemming or formation of necklines and intended for the manufacture of garments but not yet sufficiently completed to be identifiable as garments or parts of garments - In the case at hand it is already established that the products are incomplete or unfinished Salwar/Churidar Sets', which requires further stitching to size/design - The products are not simply fabrics with certain embellishments but containing Top which are Semi-stitched, Stitched and neck-line formed/dupatta hemmed/knotted, which are without ambiguity cannot be considered as mere 'Fabrics' but more appropriately termed as 'garments' or 'Part of garments' - Thus the Model 2, 3 and 4 under consideration, being Sets of three pieces consisting of (1) unstitched Salwar (bottom), (2) laced/hemmed/knotted duppata and (3)Semi-stitched/Fully stitched Kurta (Top)/Top with defined neckline are 'garments' and not mere 'fabric' in three pieces - lower authority has correctly pronounced the ruling and Appellate authority does not find any reason to interfere with the same - Appeal rejected: AAAR [para 9.1, 9.2, 10.2, 10.3, 11]
- Appeal rejected : APPELLATE AUTHORITY FOR ADVANCE RULING
2019-TIOL-52-AAAR-GST
Asahi Kasei India Pvt Ltd
GST - AAR held that s ervices provided by applicant in the nature of research on the matter related to functioning of the holding company would fall under SAC 99859 as 'Other support services'; services in the nature of information on market would fall under SAC 99837 as 'Market Research services'; services provided by the Marketing Services Agreement would qualify as an export of services as defined u/s 2(6) of the IGST Act - appeal to AAAR by Revenue.
Held: All the essential ingredients of intermediary have been fulfilled by respondent, the entire gamut of supply is a mixed supply and not composite supply as these services are not naturally bundled - moreover, AAR has transcended its scope and jurisdiction by deciding upon the question related to export of services - AAR order is modified accordingly - services supplied by respondent constitutes a mixed supply of services falling under heading ‘accounting services' having SAC 9982 and under the heading ‘other professional, technical and business services', heading SAC 9983 - services supplied by respondent under Marketing services agreement constitutes a mixed supply of services under the heading ‘Research and Development services', SAC 9981, under heading ‘Other professional, technical and business services', SAC 9983 and under the heading ‘Other miscellaneous services', SAC 9997: AAAR
- Appeal disposed of: AAAR
