2019-TIOL-GST-305 Dated: Friday, September 06, 2019

HIGH COURT CASES

2019-TIOL-2064-HC-DEL-GST

Manufacturers Traders Association Vs UoI

ST - Petitioner relies upon paragraph no. 9.8.10 of Minutes of 15 th GST Council Meeting and contends that the GST Council has decided the rate of tax on fabric items - Respondent submits that he will take instruction in this respect and is presently instructed to state that the reduction of the rate is only related to cotton and natural fabric.

Held: Respondent to file an affidavit on the aforesaid aspect within four weeks - Matter to be listed on 11.10.2019: High Court [para 4, 5]

- Matter listed: DELHI HIGH COURT

2019-TIOL-2063-HC-PATNA-GST

Ram Charitra Ram Harihar Prasad Vs State Of Bihar

GST - Petitioner is aggrieved by the order passed by the responent whereby a tax liability of Rs. 2,30,722/- together with equal penalty of Rs. 2,30,722/- the total amounting to Rs. 4,61,444/- has been imposed against the petitioner leading to issuance of demand notice for alleged violation of the provisions of Section 68 of CGST Act, 2017 read with Section 129 of ‘the Act' which mandates that any transportation of goods in contravention of the provisions of ‘the Act' or the Rules framed thereunder, would be liable to detention, seizure and release only upon discharge of obligation created thereunder - Facts are goods in question were being transported from the district of Vaishali to the district of Kishanganj and E-WAY BILLS to such effect under the provision of Section 138 of ‘the Act' was generated on 18.04.2019 which had a validity until 22.04.2019; though the consignment reached its destination on 22.04.2019, yet the vehicle was found in movement and which led to its seizure/detention under Section 129 of ‘the Act' and the proceedings initiated thereunder with service of notice on the dealer; that no sooner the position was gathered by the petitioner, that a fresh E-WAY BILL was generated at 6.16 A.M in the morning of 26.04.2019 validating the transportation

Held: Section 68 of the Act casts an obligation on the person incharge of a conveyance carrying consignment of goods, to carry with him such documents as may be prescribed - Rule 138 casts an obligation on such person to electronically upload the information as provided at Part A of Form GST EBW-01 on the common portal and whereupon a unique number is to be generated which in terms of second proviso to Rule 138(9) has a validity of 15 days from its generation - order dated 26.04.2019 passed by the Deputy Commissioner fairly records that E-WAY BILLS after its expiry on 22.04.2019 had been again generated at 6.16 A.M on 26.04.2019 and this fact is noted by the Deputy Commissioner and confirms that the transportation regained its lawful identity - Once the assessing authority i.e. the Deputy Commissioner, State Tax has recorded in his proceedings on 26.04.2019 that the E-WAY BILL has been generated, meaning thereby the goods carried a valid E-WAY BILL, the proceedings ought to have been brought to a close, rather than to perpetuate the illegality as done in the present case - proceedings in its entirety are quashed together with the demand dated 07.05.2019 which is accordingly quashed and set aside - The conditional release of the goods together with the vehicle vide order passed on 17.5.2019 is confirmed and the petitioner is discharged from the liability of the security directed under the interim order - Petition allowed: High Court

- Petition allowed: PATNA HIGH COURT

2019-TIOL-2062-HC-RAJ-GST

State Of Rajasthan Vs ASI Industries Ltd

CST/GST - State-appellant is aggrieved from the decision of the Single Judge - It is contended that in the absence of Central Sales Tax (CST) Registration the assessee respondent cannot claim a direction to 'C' Forms be issued to it.

Held: Almost identical situation had arisen before the Punjab and Haryana High Court in Carpo Power Limited Versus State of Haryana & Ors., where much like HSD, issue of C Forms were refused in the case of natural gas procured from Gujarat for use in Haryana and the High Court had held that the respondents were liable to issue 'C' Forms in respect of the natural gas purchased by the petitioner from the Oil Companies in Gujarat and used in the generation or distribution of electricity at its power plants in Haryana; that the special appeal preferred by the State of Haryana against this decision was rejected on 13.08.2018 - Court is, therefore, of the opinion that denial of 'C' Forms is purely on account of exigencies of advent of the GST regime which compelled the assessee to migrate to and obtain GST Registrations which rendered at the same time its CST registrations ineffective; this was inadvertent and beyond its control - directions issued by the Single Judge are upheld and appeal is dismissed: High Court [para 3, 4, 6, 7]

- Appeal dismissed: RAJASTHAN HIGH COURT

2019-TIOL-2047-HC-MAD-GST

Silver Star Automobiles Pvt Ltd Vs CGST & CE

GST - The matter relates to the migration from VAT regime to the GST regime post 01.07.2017 - The petitioner-company encountered technical glitches in respect of Form TRAN-1 when migrating to the GST regime.

Held - During hearing in this case, the Single Judge had directed the petitioner to appear before the Joint Commr. (CS) and present the evidences supporting its contention of being unable to upload TRAN-1 declaration - The Joint Commr. (CS) had been directed to dispose off the petitioner's request as expeditiously as possible - In pursuance of such findings, it is appropriate to mention the date, time and venue with specificity and exactitude - Date fixed for 12.09.2019 at half past eleven in the forenoon at the office of the Joint Commr. (CS) - The Joint Commr. (CS) directed to dispose off the petitioner's request as expeditiously as possible, in any event, not later than a fortnight from date of receipt of this order: HC

- Writ petition disposed of: MADRAS HIGH COURT

2019-TIOL-2043-HC-MUM-GST

Manekia Networks LLP Vs UoI

GST - Petitioner's grievance is that due to human errors the credit taken and utilized was not correctly reflected in the monthly returns i.e. GSTR-1, GSTR-2A and GSTR-3B filed under the CGST Act, 2017; that when the petitioner sought to file its annual returns under GSTR-9 and correct the mistakes which had occurred due to human error in the earlier return, it was unable to do so as the system being auto populated did not permit such corrections; that there is no provision provided under the Act to rectify the return which has been filed even if the human error has been committed; that in the absence of any such prohibition in law, the system is overriding the law; that the petitioner's representation to the Authorities to either amend its monthly returns or annual returns have remain unanswered - Counsel for Respondent Revenue seeks time to take instructions - petitions adjourned to 5 th September 2019: High Court

- Petition adjourned: BOMBAY HIGH COURT

2019-TIOL-2040-HC-MAD-GST

KRG Textile Mills Vs State Of Tamil Nadu

CST/GST - Petitioner was making inter-state purchases of High Speed Diesel Oil at concessional rate of tax at 2% by way of 'C' forms - After introduction of 'Goods and Services Tax', petitioner continued to purchase High Speed Diesel Oil, but, however, they could not download the 'C' forms- When the petitioner enquired with the Revenue Department, the petitioner was informed that after introduction of GST regime on and with effect from 01.07.2017, the petitioner was not entitled to make purchase of High Speed Diesel Oil from other States at concessional rate of tax i.e., at 2% and therefore, the Department's site has been blocked to deny access to the petitioner and other similarly placed persons from downloading 'C' forms - It is contention of the petitioner that even though as per the certificate of registration issued to the petitioner under the CST Act, the petitioner is entitle to purchase HSD, the Commercial Taxes Department's website has disentitled the petitioner from downloading the 'C' form for issuing to its supplier for purchasing HSD.

Held: Above said issue came up for consideration before another Judge of this Court in a batch of writ petitions i.e., W.P.Nos.19458 to 19460 of 2018 etc., being a batch of 71 writ petitions and a common order came to be passed on 26.10.2018 allowing the writ petitions filed by the assessees and directing the Revenue to permit the petitioners assessees to download 'C' forms; that though an intra Court appeal has been preferred against Ramco Cements matter with a delay of three days, the same remains unnumbered as of today; in other words, Ramco Cements authored by Judge of this Court is holding the field as of today; that Post Ramco Cements matter, a similar situation came up before another Single Judge vide W.P.No.12520 of 2019 and the same came to be disposed of on 26.04.2019 and in the said order, Single Judge held that till such time the order of Ramco Cements is either stayed or reversed it is incumbent upon all Assessing Authorities within the State of Tamil Nadu to apply the rationale and the principle laid down in Ramco Cements with regard to pending assessments - In the light of the narrative supra and in the light of the trajectory, which this matter has taken at the admission stage, it follows as a natural sequitur that instant writ petition stands allowed - Consequently, necessary action has to be taken by the Revenue/Department/Respondents forthwith, which, in any case shall not be more than 5 working days from the date of receipt of a copy of this order - Writ Petition is allowed: High Court [para 7 to 11]

- Petition allowed: MADRAS HIGH COURT

2019-TIOL-2039-HC-MP-GST

Petra Buildcare Products Vs Natibal Thermal Power Corporation Ltd

GST - Petitioner was awarded the contract for auctioning of Ash Pond for collection and sale of cenosphere at NTPC Vindhyachal - contention of the petitioner is that he was depositing GST as per 18% in terms of the award of contract - Petitioner submits that they came to know that the tax rate has been reduced to 5% as per the notification dated 10.11.2017, however, the department by the correspondences said that in case petitioner would not deposit 18% GST regularly and further deposit difference of 13% of GST, the respondent NTPC shall take coercive action to stop the work of the petitioner; that representation submitted by the petitioner has not been decided and kept pending - In view of the said submission it is urged that the NTPC Management and Finance Department may be directed to decide the said issue as expeditiously as possible and till then, they may be permitted to deposit the amount of GST @ 5% as per the notification of the Central Government and the respondents be restrained from taking any coercive action against him asking deposit of difference of GST @ 13% subject to taking surety.

Held: Without expressing any opinion on the merits of the case, writ petition disposed of with a direction to petitioner to deposit GST at the rate of 5% as per government notification subject to furnishing the surety for remaining 13% GST, subject to decision taken by the respondents deciding the representation - respondent to take decision on the representation within one month and till that time no coercive action to be taken against the petitioner - Petition is disposed of: High Court

- Petition disposed of: MADHYA PRADESH HIGH COURT

AAR CASES

2019-TIOL-278-AAR-GST

KM Trans Logistics Pvt Ltd

GST - Applicant seeks a ruling as to whether transportation by own vehicles on the basis of invoices and e-way bill without issuing LR/GR will be covered under exempted supply/non-GST supply; whether rule 42 of the Rules, 2017 will also apply in case where there is GST and non-GST supplies and there is a common consumption of inputs and input services.

Held: Transport services provided to various manufacturers of motor vehicles for carrying their vehicles from factory to various cities in India where authorised dealers are located is a Goods Transport Agency (GTA) Service under the CGST Act, 2017 - as per the definition of GTA in 11/2017-CTR, “GTA” means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called - Where a consignment note is issued, it implies that the lien on the goods has been transferred and the transporter of the goods becomes responsible for the goods till it's safe delivery to the consignee - further, the applicant is carrying supplier's invoice and e-way bill while providing transport service and the e-way bill format as per 12/2018-CT indicates that the Transport document number is nothing but goods receipt number (GRN) and without mentioning the same, E-way bill cannot be generated, therefore, it is mandatory for the GTA to issue the transport document - the applicant is, therefore, a GTA service provider under the Act and is not exempted from paying GST inasmuch as they are liable to pay GST under 11/2017-CTR r/w 13/2017-CTR - insofar as applicability of rule 42 is concerned, where the goods or services or both are used by the registered person, partly for effecting taxable supplies including zero-rated supplies and partly for effecting exempt supplies, the amount of credit shall be restricted to so much of the input tax as attributable to the said taxable supplies including zero-rated supplies as per provisions and procedure prescribed u/s 17(2) of the Act read with rule 42 of the Rules, 2017: AAR

- Application disposed of: AAR

DELHI SGST NOTIFICATION

RATES NOTIFICATION

26/2018

Intra-State supply of gold falling in heading 7108 of First Schedule to Customs Tariff Act, is to get exemption if supplied by Nominated Agency

20/2018

DGST Not - Restrictions on refund of unutilized ITC as per Notification No. 05/2017- State Tax (Rate), not to apply on supplies received on or after Aug 01, 2018 in respect of certain goods.

19/2018

Delhi Govt modifies Notfn No 2/2017-ST(R); inserts provisions for Vegetable materials & sanitary towels

18/2018

Delhi Govt amends Notfn No 1/2017-ST(R); inserts entries for Ethyl Alcohol and other items

RULES NOTIFICATIONS

58/2019

Government notifies persons whose registration stood cancelled on or before the Sep 30, 2018, as class of persons who shall furnish final return in FORM GSTR-10

VI-389/2019

Government constitutes Delhi Appellate Authority for Advance Ruling for GST

28-1/2019

DGST - Delhi GST Rules further amended - Transporter having unique common enrolment number are not eligible to use GSTIN for purposes of Chapter XVI

ORDER

ORDER 04/2019

Obstruction faced by operators in obtaining registration due to technical issues, stands removed - Due date for furnishing statement gets extension

ORDER 03/2019

Obstruction faced by operators in obtaining registration due to technical issues, stands removed - Due date for furnishing statement gets extension

JEST GST by Vijay Kumar

GST 2.0?

ARTICLES