AAR CASES

2019-TIOL-441-AAR-GST

Travancore Cocotuft Pvt Ltd

GST - The applicant company manufactures and exports PVC Tufted Coir Mats and Mattings - The applicant approached the AAR seeking to know the classification of such items.

Held - PVC Tufted Coir Mats and Mattings cannot be considered to be textile of coir and fllor coverings covered under HSN 5702, 5703 and 5705 - If any, PVC or rubber or any other materials are stuffed on the textile of coir, which is used as floor mats or mattings, it will come under CTH 5703 90 90 and will be taxable @ 12% as per Entry No 144 of Schedule II of Notfn No 01/2017-CT(R): AAR

- Application disposed of: AAR

2019-TIOL-440-AAR-GST

Square One Homemade Treats

GST - The applicant company is engaged in reselling food products such as cakes, baked items like cookies, brownies, ready to eat homemade packed food, ready to eat snacks, hot & cold beverages through dispensing machines - All food items sold are pre-packed and no cooking is done at the premises - In the bakery premises, the applicant provided a table for customers who eat food procured from the counter - The applicant approached the AAR seeking to know whether resale of food & bakery products falls under restaurant services - It also sought to know whether of HSN and tax rates favored by the applicant would be correct.

Held - A restaurant is a place of business where food is prepared in the premises and served based on orders received from the customer - In the instant case, it is a bakery where ready to eat items are sold and merely a facility is provided to have it from the shop: AAR

- Application disposed of: AAR

2019-TIOL-439-AAR-GST

PM Sankaran

GST - The applicant manufactures traditional snack items from Kerala using ingredients such as Bananas, Potatoes, Tapioca, Nuts, Dhai, Sugar, Chillies, Spices, Wheat, Rice, Ghee & Coconut Oil - The applicant approached the AAR seeking to know the GST rate for Peanut Candy; Gingelly Candy, Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball, Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta.Thattavada, Murukku, Avil Vilayichatu & Baked Chips.

Held - The Peanut Candy and Gingelly candy are taxable @ 5% vide Entry No 92 of Schedule I to Notfn No 01/2017-CT(R) - Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball and Avil Vilayichathu are taxable @ 5% - Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta/Thattavada and Murukku are taxable @ 12% if sold at brand or trade name vide Entry No 46 of Schedule II - If sold in unit container with or without brand name on which any actionable claim or enforceable right in respect of such brand name are voluntarily forgone are taxable @ 5% vide Entry No 101A of the Schedule I of Notfn No 34/2017-CT(R) - Baked chips fall under HSN 2008 19 40 and are taxable @ 12% vide Entry 40 of Schedule II tp Notfn No 01/2017-CT(R): AAR

- Application disposed of: AAR

2019-TIOL-438-AAR-GST

Natural Fibre Tuft

GST - The applicant company manufactures and supplies PVC tufted coir mats and mattings - The applicant approached the AAR seeking the appropriate classification of PVC Tufted Coir Mats and Matting.

Held - PVC Tufted Coir Mats and Matting cannot be considered to be textile of coir and floor covering under HSN 5702, 5703 & 5705 - If any, PVC or rubber or any other materials are stuffed on the textile of the Coir, which is used as floor mats or mattings, it will come under CTH 5703 90 90 and will be taxable @ 12% as per Sr No 144 of Schedule II of Notfn No 01/2017-CT(R) - Moreover PVC Tufted Coir Mats and Matting cannot be classified under tariff item 5703 90 90 and floor coverings of Coir and will not attract 5% GST: AAR

- Application disposed of: AAR

2019-TIOL-437-AAR-GST

Geo Thomas And Company

GST - The applicant-company manufactures and supplies goods used by rubber farmers for agricultural operations such as tapping, collection and processing - The products include plastic cup, spout and cup holder for latex collection - In the pre-GST regime, such items were exempted from tax as they were agricultural implements - The applicant approached the AAR seeking to know the classification and tax rate applicable on such items.

Held - The items such as spout, cup holder and latex collection cup are agricultural implements exclusively used for rubber tapping and come under classification HSN 8201 90 00 as Other hand tools of the kind used in agricultural, horticulture or forest - Hence all these items are exempted from GST: AAR

- Application disposed of: AAR

2019-TIOL-436-AAR-GST

Excel Earthings

GST - The applicant company manufactures and supplies electrical earthing products - It approached the AAR seeking to know the classification of Bentonite Powder which is used for electrical (8 Kg & 6 Kg) as well as its effective tax rate - The applicant claimed that its competitors are selling Bentonite Powder @ 5% in electrical shops for earthing purposes and if such rate of tax is correct.

Held - Bentonite Powder used for electrical earthing is commercially known as Back Fill Compound and it consists of mixture of Bentonite Powder, Wood Charcoal powder, Graphite powder and Sodium Sulphate - This mixture is used as an agent for reducing surface tension - Hence it falls under Heading 3824.99.17 and is taxable @ 18% as per Sr No 97 of Schedule III of Notfn No 01/2017-CT(R) - Moreover, the mixture of Bentonite Powder used for earthing pupose is taxable @ 18%: AAR

- Application disposed of: AAR

2019-TIOL-435-AAR-GST

Dynamic Techno Medicals Pvt Ltd

GST - The applicant-company is a distributor of Cervical Pillow which is used for preventing or correcting Cervical Spondylitis or Cervical Sprain and for supporting or holding head & neck during such illness - It approached the AAR seeking to know whether Cervical Pillows fall under HSN tariff item 5021.10.00.

Held - Cervical Pillows fall under HSN 9404.10.00 and is taxable @ 18% as per Sr No 438 of Schedule III of Notfn No 01/2017-CT(R): AAR

- Application disposed of: AAR

2019-TIOL-434-AAR-GST

Dobersun Products Pvt Ltd

GST - The applicant manufactures traditional snack items from Kerala using ingredients such as Bananas, Potatoes, Tapioca, Nuts, Dhai, Sugar, Chillies, Spices, Wheat, Rice, Ghee & Coconut Oil - The applicant approached the AAR seeking to know the GST rate for Peanut Candy; Gingelly Candy, Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball, Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta.Thattavada, Murukku, Avil Vilayichatu & Baked Chips.

Held - The Peanut Candy and Gingelly candy are taxable @ 5% vide Entry No 92 of Schedule I to Notfn No 01/2017-CT(R) - Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball and Avil Vilayichathu are taxable @ 5% - Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta/Thattavada and Murukku are taxable @ 12% if sold at brand or trade name vide Entry No 46 of Schedule II - If sold in unit container with or without brand name on which any actionable claim or enforceable right in respect of such brand name are voluntarily forgone are taxable @ 5% vide Entry No 101A of the Schedule I of Notfn No 34/2017-CT(R) - Baked chips fall under HSN 2008 19 40 and are taxable @ 12% vide Entry 40 of Schedule II tp Notfn No 01/2017-CT(R): AAR

- Application disposed of: AAR

2019-TIOL-433-AAR-GST

Santosh Distributors

GST - Prices of the products supplied by the applicant is determined by the supplier/principal company and the applicant has no control over the same - therefore, it is evident that the additional discount given by the supplier through the applicant which is reimbursed to the applicant is a special reduced price - such additional discount is liable to be added to the consideration payable by the customer to the distributor/applicant to arrive at the the value of supply in terms of s.15 of the Act: AAR

GST - Supplier of goods/principal company issuing the commercial credit note is not eligible to reduce its original tax liability and hence recipient/applicant will not be liable to reverse the ITC attributable to the commercial credit notes received by him from the supplier: AAR

GST - Applicant is liable to pay GST at the applicable rate on the amount received as reimbursement of discount/rebate from the principal company: AAR

- Application disposed of: AAR

2019-TIOL-432-AAR-GST

Tata Projects Ltd

GST - Supply under the contract for ‘Design, Realisation, Integration and Commissioning of 1.2 m Trisonic Wind Tunnel at Vikram Sarabhai Space Centre, ISRO, Thiruvananthapuram' cannot be considered as a supply of equipment eligible for concessional rate of tax as per Sl. no. 234B of 1/2017-ITR - such work of designing, realisation, integration and commissioning would fall under the definition of Works Contract u/s 2(119) of CGST Act; will attract GST @12% in terms of Sl. no. 3(vi) of 8/2017-ITR: AAR

- Application disposed of: AAR

2019-TIOL-431-AAR-GST

Vista Marine And Hydraulics

GST - Supply of spare parts/accessories and repair service are distinct and separately identifiable supplies for which the rates are quoted differently and work orders are issued separately - such supply under the Repair Rate Contract cannot be considered as composite supply - Where a supply involves supply of, both goods and services and the value of such goods and services supplied are shown separately, the goods and services would be liable to tax at the rates as applicable to such goods and services separately: AAR

- Application disposed of: AAR

2019-TIOL-430-AAR-GST

Baby Memorial Hospital Ltd

GST - Supply of medicines, drugs and other surgical goods from its pharmacy to in-patients are in the course of providing healthcare service which are naturally bundled and are provided in conjunction with each other would be considered as ‘composite supply' and eligible for exemption under ‘healthcare services', Sr. no. 74 of 12/2017-CTR: AAR

GST - Supply of medicines, drugs and other surgical goods by the hospital from its pharmacy to out-patients is a taxable supply of goods and GST is applicable: AAR

GST - Supply of artificial body parts/devices such as heart valve, artificial kidney, artificial joints and coronary stents which are implanted in the body essentially by means of a surgical procedure can be classified as a composite supply where the principal supply is of healthcare services and are exempted: AAR

GST - Where artificial body parts/devices which are worn/attached/fitted/fastened to body for which a surgical procedure may or may not be required, the nature/taxability of supply has to be determined on a case to case basis: AAR

GST - Supply of goods like wheel chairs, tricycles etc. to the patients cannot be considered as a composite supply where the principal supply is healthcare services - goods would be liable to GST on an individual basis: AAR

- Application disposed of: AAR

2019-TIOL-429-AAR-GST

CGR Gold Trading

GST - Quality testing and certification of gold ornaments are covered under SAC 998346 and rate of GST is 18% as per Sl. no. 21(ii) of 11/2017: AAR

GST - Jewellery Manufacturing Services SAC 998892 includes gold maintenance/repair works - Therefore, in case of gold maintenance/repair works such as enlargement of gold chains or other gold ornaments or cutting and polishing of gold ornaments or other repairs of gold ornaments, when undertaken by a job worker, the Rate of GST is 5% if undertaken on goods belonging to registered persons as per Sl. no. 26(i)(c) and 18% if job work is undertaken on goods belonging to unregistered persons as per Sl. no. 26(iv) of 11/2017-CTR: AAR

GST - Printing name of emblems or embossing/projecting top or side portion of ornaments, cutting, shaping, sizing and conversion of gold ornaments into coins/biscuits as per instructions of prospective customers is also covered as Jewellery Manufacturing Services SAC 998892 and rate of tax would be in terms of 11/2017-CTR, Sr. no. 26(i)(c) or 26(iv) as the case may be: AAR

GST - If the applicant is a pure job worker and if his total turnover is below Rs.19 lakhs per annum, registration is not required since as per s.22 of the Act, every supplier is required to take registration only when his aggregate turnover, computed on an India basis, in a FY exceeds the threshold limit of Rs.20 lakhs: AAR

Application disposed of: AAR

2019-TIOL-428-AAR-GST

Industrial Engineering Corporation

GST - Applicant is a manufacturer or packing containers such as empty barrels and drums mainly used by manufacturers of paint industries, petrochemical industries etc. as packing material - applicant is planning to execute the supply order through another firm to ensure timely delivery to customers - they have sought ruling as to the rate of GST applicable to the job work charges payable by them; documents to be maintained; in case some consumables are arranged by the job work unit, whether there would be a change in rate of tax; whether there would be any tax liability on the value of scrap held with job work unit.

Held: Rate of GST applicable is 18% as per Sl. no. 26(iv) of 11/2017-CTR; that in terms of s.143 registered principal may, without payment of tax, send inputs or capital goods to job worker and on completion of job work bring back the goods or supply the same directly to customer, rate of GST being same as that mentioned above; rule 45, 55 of the CGST Rules, 2017 and Form GST ITC-04 to be filed; use of own goods by job worker will have no bearing on the rate of GST applicable; insofar as scrap and waste generated at job worker's end is concerned, as per s. 143(5) of the Act, same can be supplied by job worker directly from his place of business on payment of tax, if registered, or by the principal: AAR

- Application disposed of: AAR

2019-TIOL-427-AAR-GST

GST - Situation is w hen the license for renting of immovable property is in force, but the licensee does not pay or pays only partially the periodical license fee to the applicant as agreed in the lease agreement. Held:  In respect of continuous supply of service when the license is in effect, as per Section 31(5), the tax invoice, containing the details as per Rule 46 of CGST/TNGST Rules, should be raised on or before due date of payment as ascertainable from the contract - If  the rent invoice is issued before the due date of payment as specified in the agreement, the Time of supply as determined by Section 13(2) (a) of the Act shall be date of issue of invoice or Rent Claim Advice - If the invoice is issued after such due date of payment, the Time of supply as determined by Section 13(2)(b) shall be the date of provision of service which is the end of recurrent period specified in the agreement after which the rent/license fee is to be paid: AAR

- Application disposed of :AUTHORITY FOR ADVANCE RULING

2019-TIOL-426-AAR-GST

GST -  In the scenario of the license for renting of immovable property has expired and not in force but the licensee continues to be in Possession and occupation of the immovable properties, in cases where there is a provision in contract for continued supply of service after expiry or termination of the contract, the Rent Claim Advice is issued by the applicant within the period prescribed in Section 31(5) and the Time of supply as determined by Section 13(2)(a), as the earliest of the date of issue of Rent Claim Advice by the supplier and the date of receipt of payment: AAR GST - In respect of cases where there is no such provision regarding continued supply of service after expiry of contract, if such Rent Claim Advice (RCAs) are issued within thirty days after the end of recurrent period specified in the agreement after which the rent/license fee is to be paid for which the rent is being sought, the Time of supply as determined by Section 13(2)(a), as the earliest of the date of issue of invoice or Rent Claim Advice by the supplier and the date of receipt of payment - If the RCAs are issued more than thirty days after the end of the month for which the rent is being sought, the Time of supply as determined by Section 13(2)(b), as the earliest of the date of provision of service, which is the end of recurrent period specified in the agreement after which the rent/license fee is to be paid and the date of receipt of payment, whichever is earlier: AAR

GST - In the scenarios of the license for renting of immovable property is in force, but the licensee does not pay or pays only partially the periodical license fee to the applicant as agreed in the lease agreement, if the rent invoice is issued before the due date of payment as specified in the agreement, the Time of supply as determined by Section 13(2) (a) shall be date of issue of invoice or Rent Claim Advice - If the invoice is issued after such due date of payment, the Time of supply as determined by Section 13(2)(b) shall be the date of provision of service which is the end of recurrent period specified in the agreement after which the rent/license fee is to be paid: AAR

2019-TIOL-425-AAR-GST

GST - Applicant is engaged in procuring Tamarind fruit, an agro product, from farmers (unregistered) across Tamil Nadu and supplying the same to processing units - after completion of procurement, the fruits are packed in gunny bags and supplied through transporting agencies to processing units - applicant contends that the Tamarind fruit obtained from farmers should be classifiable under HSN 0810 as fresh fruit" since the product does not undergo any process of manufacture or undergo any value addition, a ruling is sought in this regard.

Held : Applicant has explained the nature of their product thus - farmers collect ripened tamarind fruits by shaking and smacking the branches of the tree using long clubs/poles and as the fruits fall to the ground the outer shell gets cracked and comes in contact with soil deposits on the ground; that they are buying these fruits from the farmers and supply as such to the processing units where these fruits would be subjected to processes such as removal of remnants shells, outer fibrous ribs, removal of other impurities like sand/soil, removal of seeds and finally drying them to generate wads of tamarind - applicant has also submitted that the tamarind fruits obtained from farmers are not sun dried -  There are specific headings Tamarind fresh - 0810 9020 and Tamarind dried - 0813 4010 in the Tariff and as per the Explanatory notes (HSN), dried fruits classifiable under 0813 are those falling under CTH 0806 to 0810, prepared by either direct drying in the sun or by industrial processing - As per General Rule of Interpretation Rule 1, Classification shall be determined according to the terms of the headings and if it cannot be done then the classification is to be arrived at following the further rules - Tamarind fresh and Tamarind Dried are specific tariff headings and what constitutes "Dried fruit' is clarified in the Explanatory notes (HSN) - When a specific Tariff heading is available, there is no necessity to follow further interpretative rules - In the case at hand, the applicant has stated that the Tamarind fruit purchased by the farmers do not undergo any process of drying either by sun or industrial process and is hence, classifiable under CTH 08109020 as Tamarind, fresh: AAR

2019-TIOL-424-AAR-GST

GST- Applicant has sought a ruling on the following question- Classification of goods manufactured - Whether Carbonated Fruit Juice falls under Fruit Juices or Aerated drinks.

Held: Statutory regulations require a minimum of 10% fruit juice to be called a Fruit Drink - Fruit juices and carbonated beverages with fruit drinks are distinct products in the FSSAI regulations and the products of the applicant are covered under Para 2.3.30 of the regulations and Category 14.1.4.1 in the food category system in Appendix A to these regulations - product is prepared by adding fruit juice, procured by the applicant (as per the input invoices submitted), to filter water - It is evident that this large quantity of water results in diluted products which as per the Explanatory Notes get classified under CTH 2202 - As per the First Schedule to Customs Tariff, CTH 22021010 covers 'Aerated waters' - CTH 22021020 covers 'Lemonade' and CTH 22021090 covers 'Others' - applicant's products are not classifiable as 'Aerated Waters' under CTH 22021010, therefore, the products are either classifiable under CTH 22021020 or CTH 22021090 depending on the flavours- Therefore, 'Richyaa Damer Lemon' and 'Licta Lemon' are classifiable under CTH 22021020 and all others i.e. Richyaa Damer Cola', 'Licta Cola', Richyaa Damer Jeera Soda', 'Licta Jeera Masala', 'Richyaa Damer Orange' and 'Licta Orange' are classifiable as 'Other' under CTH 22021090: AAR

2019-TIOL-423-AAR-GST

GST -  Medicines, consumables and implants used in the course of providing health care services to in-patients by the applicant is a composite supply of Inpatient Services classifiable under SAC 999311 -  Supply of health care services or in-patient services by the applicant as defined in Para 2(zg) of Notification no   12/2017-C.T. (rate)    is exempted from CGST as per Sl. No 74 -  applicant is not eligible for the credit of tax paid on the Input services used exclusively for providing exempt services of health services to in-patients, such as laundry services used for in-patients - For Input services such as housekeeping, leasing of equipment used for both exempt supply of health services to in-patients and taxable supply of medicines etc. to outpatients, the appropriate ITC eligible is to be determined by Rule 42 of the CGST Rules 2017: AAR

2019-TIOL-422-AAR-GST

GST - 'Applicant' is a poly clinic run by the partnership firm and provides health care services to both out-patients and in-patients - they have sought a ruling as to whether the medicines, consumables and implants used in the course of providing health care services to in-patients for diagnosis or treatment would be considered as "Composite Supply" and accordingly eligible for exemption under the category "HEALTH CARE SERVICES". Held: In-patient services means services provided by hospitals to in-patients under the direction of medical doctors aimed at curing, restoring and/or maintaining the health of a patient and the service comprises of medical, pharmaceutical and paramedical services, rehabilitation services, nursing services and laboratory and technical services - A complete gamut of activities required for well-being of a patient and provided by a hospital under the direction of medical doctors is a composite supply of service and is covered under In-patient services' classifiable under SAC 999311 - Therefore, Medicines, consumables and implants used in the course of providing health care services to in-patients by the applicant is a composite supply of In-patient Services classifiable under SAC 999311 - Supply of health care services or in-patient services by the applicant as defined in Para 2(zg) of Notification no 12/2017-C.T. (rate) dated 28.06.2017 as amended is exempted from CGST as per Sl. No. 74 of the above notification: AAR

- Application disposed of :AUTHORITY FOR ADVANCE RULING

2019-TIOL-421-AAR-GST

Children of the World India Trust

GST - Applicant, a Trust, seeks a ruling as to whether the activities conducted by them are‘charitable activities' and exempted under 12/2017-CTR andconsequently receipt of the adoption fees paid under regulation 46 of the Adoption Regulations, 2017 by theprospectiveadoptive parents to the Trust is exempted from levy of GST.

Held: Question, whether or not, exemption notification 12/2017-CTR applies to the applicant's activities would be relevant only if it is considered that their activities attract GST - Oncareful consideration of the definition of‘business',‘supply' and‘consideration'contained in the CGST/SGAT Act, Authority is of the opinion that theapplicant, along with providing foradvancement of educational programmes orskill development relating to abandoned,orphaned or homeless children, is also providing a‘service of facilitating adoption'andreceiving consideration in the form of adoption fees for such facilitation servicesrendered by them, therefore, suchactivities are covered within the scopeof the Act - Activities conducted by theapplicant are clearly covered under Sr. no. 1 of 12/2017-CTR and the applicant being an entity registered u/s 12AA of the IncomeTax Act, 1961 is entitled for exemption under the said entry tothe notification - Insofar as the“Adoption fees” paid to them by the adopting parents under Regulation 46 of the Adoption Regulations, 2017, thesame is collected strictly in terms of the guidelinesfixed by the Adoption Regulations, 2017 issuedunder the Juvenile Justice (Careand Protection of Children) Act, 2015 - applicant, being a Specialised Adoption Agency (SAA) can charge a fee of Rs.40,000/- under the head Child Care Corpus from adopting parents and this fee is used for shelter, food,clothing,foster care,maintenance, medical treatment and primary eduction and providing basic computer skills to these abandoned children/orphans in their Bal Vikas Kendras till the time they are adopted - Activities of the applicant, including the activity of facilitating the adoption of children by the adoptive parents arein the nature of‘Charitable Activities' and is clearly covered by Sr. no. 1 of 12/2017-CTR and are exempted - Therefore, receipt ofAdoption fees by theapplicant from theprospective adoptive parents isexempted from the levy of Goods andServices Tax Act: AAR

- Application disposed of: AAR

NAA CASES

2019-TIOL-52-NAA-GST

Director General Of Anti-Profiteering Central Board Of Indirect Taxes And Customs Vs Nani Resorts & Floriculture

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - DGAP has, after taking into account the benefit of credit available during pre-GST period (April 2016 to June 2017) to the taxable turnover received during the said period and comparing the same with the post-GST period (01.07.2017 to 30.09.2018) has arrived at the percentage of ITC and that is that there has been a net benefit of ITC of 3.84 percent - inasmuch as the additional input tax credit of 3.84% of the turnover should have resulted in commensurate reduction in the base price as well as cum-tax price - Authority is in agreement with the DGAP's calculations and based on the said facts the profiteered amount is determined as Rs.2,47,48,549/- which includes GST @12% or 8% as applicable on the base profiteered amount of Rs.2,28,05,373/- realised from all the 731 residential units during the period 01.07.2017 to 31.09.2018 - Profiteering does not have any co-relation with costing and as per s.171 of the Act, any additional input tax credit available on account of supply of goods or services used in construction of project, whether directly or indirectly, on account of GST shall have to be passed on to the recipients - Benefits arising out of GST implementation in form of additional input tax credit cannot be set off against any cost increase, once the agreement for sale with home buyers has been finalised - above profiteered amount have to be paid by the respondent to the applicants and the other eligible house buyers along with interest @18% from the date from which these amounts were realised from them till they are paid as per the provisions of rule 133(3)(b) of the CGST Rules - Authority also directs, in terms of rule 133(5)(a) of the Rules, the DGAP to investigate all the other projects of the respondent for violation of the provisions of s.171 of the Act and submit a report as there may be a possibility of profiteering w.r.t the other projects also - as respondent has denied the benefit of ITC to buyers of flats being constructed by him in contravention of the provisions of s.171(1) of the Act and has thus realised more price from them than he was entitled to collect, he is liable for imposition of penalty u/s 171(3A) of the Act and for which reason SCN is to be issued - Authority, in terms of rule 136 of the Rules directs the Commissioners of CGST/SGST Haryana to monitor this order by ensuring that the profiteered amount is passed on to all buyers: NAA

- Application allowed: NAA

HIGH COURT CASES

2019-TIOL-2464-HC-MAD-GST

GRB Dairy Foods Pvt Ltd Vs State of Tax Officer

GST - The present writ petitions were filed to assail assessment orders served for the AYs 2017-18, 2018-19 and 2019-20 - It was stated that the assessment orders were passed on 01.10.2019 and were served on 03.10.2019, with the demand notice being issued immediately on 10.10.2019, whereupon the petitioner was called upon to submit proof of payment of quantum of tax, interest & penalty determined by the AO for each AY on or before 21.10.2019 and that failure to do so would result in recovery of dues by initiating proceedings u/s 79 of CGST Act.

Held - It is undisputed that the assessment orders were passed for the relevant AYs on 01.10.2019 and were communicated to the petitioner on 03.10.2019 - It is also undisputed that the time prescribed for filing appeal against those assessment orders had not expired - Meanwhile, the demand notice was issued to the petitioner, directing it to submit proof of payment of tax, interest & penalty demanded through assessment orders on or before 21.10.2019 - However, further communication issued by the first respondent dated 21.10.2019 to the petitioner shows that the proceedings were already deferred by the Revenue, considering that the petitioner has time to file the statutory appeal and that the time had not expired so far - In such facts & circumstances, nothing survives in the present petitions for further adjudication, since the first respondent chose to defer the proceedings - Hence no further orders are necessary: HC

- Writ petitions disposed of : MADRAS HIGH COURT

2019-TIOL-2463-HC-ALL-GST

Ajeet Gupta Vs UoI

GST - The present writ petition was filed seeking issuance of writ of Mandamus to protect the welfare of registered GST dealers by directing the Revenue to not interfere with earning of livelihood - The petitioner also sought that hurdles be removed to ensure smooth business operations - The petitioner claimed to be espousing the cause of weaker GSTN registered dealers who were facing harassment due to unfair trade practices and unhealthy business atmosphere resulting in violation of basic human rights and social injustice - The petitioner claimed to have made representations in this regard but to no avail. Held - It is the duty of this court to ensure than there is no personal gain or private motive behind filing of PIL - To preserve the purity and sanctity of PILs, the courts must encourage genuine and bona fide PILs and discourage and curb filing of PIL for extraneous considerations or with oblique motives - The courts must prima facie verify the credentials of the petitioner before entertaining a PIL and before entertaining a PIL, the courts must ensure that it is aimed at redressal of some genuine public harm or injury - Concerning the credentials of the petitioner in this case, the petitioner failed to establish the same before this court - Hence the present writ petition is in abuse and misuse of the process of this court and is not a genuine petition: HC

- Writ petition dismissed: ALLAHABAD HIGH COURT

2019-TIOL-2462-HC-RAJ-GST

Rajasthan Bar Federation Vs UoI

GST - The petitioner claimed that the respondent-Union had not provided any bench as regional bench of the GST Appellate Tribunal in the State of Rajasthan.

Held - This court in earlier orders dated 17.09.2019 had directed the Central Govt to produce the details of noting and discussion as to why the existing benches, for redressal of grievances through appeal, had been denied - The counsel for the respondent-Union claimed that the bench could not be established since so such proposal was received from the State Govt and that since such proposal had been received shortly, the matter was under active consideration - In such case, the GST council directed to take final decision to notify the bench for the State of Rajasthan - Matter be listed on or before 18.11.2019: HC

- Case deferred: RAJASTHAN HIGH COURT

2019-TIOL-2452-HC-KERALA-GST

Bridge Hygiene Services Pvt Ltd Vs State Tax Officer

GST - Petitioners had sought quashing of the assessment orders on the ground that the impugned orders do not reflect details of the materials relied upon by the Assessing Officer to make the best judgment assessment, as contemplated under Section 62 (1) of the Act - Single Judge while dealing with the writ petitions found that the appellants have even failed to take advantage of the provisions contained in sub-section (2) of Section 62 of the Act, by furnishing valid returns within 30 days after receipt of the impugned orders of assessment, which if done could have saved them from the liability under the impugned orders - Opining that it may not be possible for the court to exercise the jurisdiction under Article 226 in order to extend the time limit stipulated under sub-section (2) of Section 62, for enabling the appellants to file the returns, beyond the period of 30 days stipulated, the Single Judge dismissed the writ petitions - it was also observed that prescription of 30 days from the date of receipt of the order of assessment passed under sub-section (1) of Section 62, stipulated under sub-section (2), has to be strictly construed, since it is a provision contained in a taxing statute which enables the assessee to get the order passed against him on best judgment assessment basis, set aside - Writ appeals filed against this order on the ground that the reliance placed by the Assessing Officer on the returns submitted for the previous periods, are not legally correct and is improper; that, while passing the impugned orders of assessment in the printed format, the Assessing Authority had failed to look into the available details contained in the returns filed for the previous periods - Counsel for Revenue submitted that against the impugned orders of assessment the appellants have got an effective remedy of appeal, as provided under Section 107 of the Act and that there existed no special circumstances warranting interference by the Court by invoking s.226 of the Constitution of India.

Held: Division Bench is not prima facie convinced that there exists any special circumstances warranting interference to hold that the impugned assessments are per se illegal or unsustainable - Bench take notes of the fact that against the impugned orders, the appellants have got an effective remedy by way of statutory appeal - Bench is, therefore, not persuaded to admit the above writ appeals and consequently the writ appeals are dismissed in limine - It is also made clear that the impugned judgments of the Single Judge or the present judgment will not stand in the way of the appellants availing alternative remedy against the impugned assessments: High Court [para 4 to 6]

- Writ Appeals dismissed: KERALA HIGH COURT

2019-TIOL-2449-HC-RAJ-GST

Rakesh Kumar Khandelwal Vs UoI

GST - Petitioner has filed bail application under Section 439 of Cr.P.C in the matter relating to offence under Section 132(1)(e) of CGST Act, 2017 regarding which bail application was rejected by Sessions Judge, Jaipur Metropolitan, Jaipur - petitioner is the Manager and Authorized signatory of Padmavati Industries - case of the department is that Rs. 7.12 Crore Input Tax Credit has been wrongly claimed by Padmavati Industries - Petitioner contends that all transactions were carried out through Bank transactions and the Industries from whom purchases were made were all active, as per the record of the Department; that an amount of Rs.3.33 Crore was deposited with the Department, thus bringing the total disputed tax credit amount to below Rs.5 Crore and if the tax credit amount is below five crores the offence is bailable; that the owners of Padmavati Industries have obtained a stay on their arrest from the Apex Court; that the Petitioner is in custody from 28.08.2019; that no determination has been done by the Authorities and in the reply filed by the Union of India, they have not mentioned that any fake invoices were prepared for claiming tax credit - Revenue counters the submision by highlighting that the annual turn over of Padmavati Industries was just to the tune of Rs.1 Crore which within a year rose to more than Rs.100 Crore; that a refund of Rs.23 Crore was claimed and a refund of Rs.18 Crore was granted; that seven entities from whom the firm claimed to have purchased material were not in existence and Input Tax to the tune of Rs.7.12 Crore was wrongly claimed; that petitioner is not merely a Manager but he is also having 40% share in the profit of the firm and his capacity is that of a partner; that merely because Rs.3.33 Crore was deposited, offence cannot be termed as a bailable offence.

Held: Petitioner has placed before the Court various Tax Invoices and e-Way Bills through which purchases have been made by the firm and the record of the Department from which it is revealed that Firms were in existence - taking note of the fact that the partners of the firm have been granted protection by the Apex Court and petitioner is in custody from 28.08.2019; the total amount which as per Department is wrongly claimed after deposit of Rs.3.33 Crores is less than Rs.5 Crore, Bench deems it proper to allow the bail application - Petitioner is directed to be released on bail upon furnishing a personal bond together with two sureties and requiring to deposit passport: High Court [para 14 to 17]

- Application allowed: RAJASTHAN HIGH COURT

2019-TIOL-2441-HC-DEL-GST

Lifestyle International Pvt Ltd Vs UoI

GST - Notice issued - Matter be listed on March 02, 2020 along with W.P.(C.) No. 12647/2018 - Meanwhile, the proceedings before the National Anti Profiteering Authority may continue - The Authority shall hear all the submissions including those of limitation and jurisdiction and would pass a detailed order after considering all such pleas - Such order if passed before the next date of hearing, be placed before this court - Moreover, there is no need to pass an interim order since the petitioner is already protected by the earlier order passed by this court: HC

- Writ petition disposed of: DELHI HIGH COURT

2019-TIOL-2439-HC-MUM-GST

United Projects Vs State Of Maharashtra

GST - Proceedings arising from two writ petitions refered to Larger Bench of this court - Question of law involved pertain to legislative competence of State of Maharashtra to enact Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2017 and the Maharashtra Tax Laws (Amendment and Validation) Act, 2019 to amend the provisions of the Maharashtra Value Added Tax Act, 2002, so as to incorporate mandatory pre-deposit requirements for filing appeal against assessment orders pertaining to all goods after 101st Constitutional Amendment Act 2016 - Other issue is as to whether Explanation to Section 26 of the MVAT Act takes away an assessee's right to file appeal without statutory deposit in respect of orders passed for AYs 15.04.2017 and whether the Explanation nullifies the decision of this court in Anshul Impex Pvt. Ltd. v. State of Maharashtra - Also whether decision in this case, which lays down that right of filing appeal accrues on date of assessment order and requirement of pre-deposit does not apply to the orders passed in the AYs before 15.04.2017 is a correct proposition, since the right to appeal can be made conditional by the legislature, owing to which the decision in Anshul Impex Pvt. Ltd. v. State of Maharashtra warrants reconsideration: HC

- Case deferred: BOMBAY HIGH COURT

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