HIGH COURT CASES

2020-TIOL-1075-HC-DEL-GST

GST - TRAN-1 - Application has been filed for urgent hearing on the ground that the issue involved in the present petition is covered in petitioner's favour by way of a judgment of this Court in Brand Equity Treaties Ltd. - 2020-TIOL-900-HC-DEL-GST - However, counsel for the parties admit that the judgment of this Court in Brand Equity Treaties Ltd. & Ors. (supra) has been stayed by the Supreme Court vide order dated 19th June, 2020 - 2020-TIOL-115-SC-GST-LB - Therefore, application for early hearing is dismissed: High Court [para 3, 4]

- Application dismissed : DELHI HIGH COURT

2020-TIOL-1074-HC-DEL-GST

GST - Anti-Profiteering - Present writ petition has been filed seeking a direction to prohibit the respondents form taking any action including conducting hearing as also passing any order in the anti-profiteering proceedings under Section 171 of the CGST Act qua petitioner No.1 till such time this Court passes appropriate orders in W.P. No. 3536/2019 transferred from High Court of Bombay to this Court.

Held: Supreme Court directed the Registry to process the transfer on an expedited basis and did not pass any interim order - Supreme Court has granted liberty vide order dated 19th February, 2020 - 2020-TIOL-59-SC-GST to the petitioners to apply for interim relief in W.P. No.3536/2019 which has been transferred to this Court - Court is informed that W.P. No.3536/2019 has been transferred by the Bombay High Court Registry to this Court - Supreme Court has neither directed this Court nor given it liberty to entertain any fresh writ petition filed by the petitioner - Consequently, this Court is of the view that it cannot entertain a fresh writ petition pending transit of W.P. No. 3536/2019 to this Court, especially when the Supreme Court did not pass any interim order - to balance the equities, Court directs the Registry of this Court to list W.P. No.3536/2019 if already received by it on 29th June, 2020 - present writ petition stands disposed of: High Court [para 10, 11, 13]

2020-TIOL-1073-HC-DEL-GST

GST - Petitioner states that they could not carry forward eligible credit of Rs.6,85,863/- (being the excise duty paid by the petitioner) and the credit of which was available in the books of accounts of the petitioner as on the appointed day i.e. 30th June, 2017 for reasons beyond its control due to glitches in the system of the respondents - Petitioner further submits that Rules 117 and 120A of the CGST Rules, 2017 are ultra vires Sections 140 and 174 of the CGST, 2017 - Petitioner relies on the decision in Brand Equity Treaties Ltd. & Ors. - 2020-TIOL-900-HC-DEL-GST in support.

Held: To await the judgment of the Supreme Court in Union of India Vs. Brand Equity Treaties Limited & Ors., SLP (C) 7425-7428/2020 - 2020-TIOL-115-SC-GST-LB , and matter to be listed on 16th September, 2020 : High Court

2020-TIOL-1068-HC-DEL-GST

Premier Shield Pvt Ltd Vs Commissioner Of State Goods And Services Tax

GST - Petition filed challenging the order dated 27th February, 2020 passed by respondents cancelling the petitioner's registration under the CGST Act, 2017 and for restoration of the same - Petitioner now states that in view of the subsequent events, petitioner would like to withdraw the present writ petition and file an appropriate application before the proper officer.

Held: In the event such an application is filed by the petitioner, the same be entertained/decided by respondents in accordance with law within four weeks - Petition disposed of: High Court

-Petition disposed of : DELHI HIGH COURT

2020-TIOL-1067-HC-DEL-GST

Scandia Motorcars Pvt Ltd Vs UoI

GST - Petitioner is seeking a direction to the respondents to open the portal to enable the petitioner to seek transitional CENVAT Credit of Rs.1,79,85,755/- lying as credit balance in its account instead of Rs.1,62,74,543/- inadvertently claimed by it due to human error; that the work of filing TRAN-1 was outsourced to an accountant and on account of multiple columns and lack of knowledge, mistakes occurred which were unintentional; that the errors were detected by the Chartered Accountant while auditing the petitioner company.

Held: Counter-affidavits be filed within four weeks by respondents and rejoinder-affidavits be filed within four weeks thereafter - To await the judgment of the Supreme Court in Union of India Vs. Brand Equity Treaties Limited & Ors., SLP (C) 7425-7428/2020 - 2020-TIOL-115-SC-GST-LB , list on 16th September, 2020: High Court

-Matter listed : DELHI HIGH COURT

2020-TIOL-1065-HC-MAD-GST

Indira Projects And Development Pvt Ltd Vs State Tax Officer

GST - The present petitions were filed in contest demand notices issued to the petitioner pursuant to passing of assessment orders for the relevant AYs - The petitioner also claimed to have already filed writ petitions and that the Court Registry was yet to number the petitions and post them for admission - Such delay had been caused due to the on-going lockdown situation - Hence the petitioner claimed to have been constrained to file the present petition challenging the demand raised while the writ petitions challenging the assessment orders were yet to be heard by this court. Held - Considering that the present petitions were filed only against the consequential demand notices and also considering the petitioner's apprehension of the Revenue recovering dues as per the notices immediately, it is seen that the petitioner's apprehension is not well founded - This is in light of the CBIC Notfn No 35/2020 dated 03.04.2020 wherein general directions were issued not to make any recovery proceedings till 29.06.2020 - Hence the petitions are disposed off without expressing any views on merits: HC

-Writ petitions dismissed : MADRAS HIGH COURT

2020-TIOL-1064-HC-KERALA-GST

Thadukkassery Service Cooperative Bank Ltd Vs State Tax Officer

GST - Petitioner seeks quashing of order issued by the first respondent and also directing the respondent to grant validity for Ext.P2 registration from 01.07.2017 - Prima facie, the orders are appealable under Section 107 of the Goods and Services Tax Act, 2017 - however, the petitioner submits that the order is without jurisdiction and it is on that account extra ordinary writ jurisdiction of this Court has been invoked.

Held: Petitioner was granted two permanent account Nos. (PAN) as AAEAT6828L and AACTT3061G - On realizing the mistake, the Income Tax Department vide communication dated 13.7.2016, Ext.P1 informed the petitioner that only PAN No.AAEAT6828L will be active and the other PAN No. AACTT3061G would not be operational and accordingly the PAN Number AACTT3061G was deactivated - Petitioner, a dealer, migrated to the new tax system under GST from the erstwhile Kerala Value Added Act by giving the deactivated PAN No. AACTT3061G - It is evident that the alleged error is attributed to the human but not an omission or bonafide - There was a clear cut information from the Income Tax Department to use the one PAN No.AAEAT6828L - Despite that the petitioner had been filing particulars of the invalidated PAN Number on the basis of the Registration Number obtained - The cancellation was with effect from 30th November 2019 and not from 29.9.2018 - For all this period, there were no returns, which necessitated the assessing officer to assume the role of best assessment under Section 62 of the Act - Instant case is not of such nature where the petitioner, for the sake of repetition, was in 2016 informed with regard to use the PAN No. AAEAT6828L - Thus for all intends and purposes, there cannot be any bonafide omission or mistake - Petition being devoid of merits is, therefore, dismissed: High Court [para 7]

- Petition dismissed: KERALA HIGH COURT

2020-TIOL-1063-HC-AHM-GST

Om Sai Traders Vs State Tax Officer

GST – Vehicle and the goods were seized only for the discrepancy in the e-way bill that the vehicle number was not correlated - proceedings under Section 129 of the GST Act came to be initiated and the authority concerned determined the amount towards penalty and tax which comes to around Rs.9,94,000/- - It also appears that simultaneously the authority concerned issued a notice under Section 130 of the Act calling upon the writ applicant to show cause as to why the goods and the vehicle should not be confiscated as prima facie the intention of the writ applicant was to evade the payment of tax – at this stage, the writ applicant has approached the High Court and prayed for various reliefs.

Held: Bench is of the opinion that it should not interfere with the impugned show cause notice issued by the authority under Section 130 of the Act and the authority should be permitted to adjudicate the show cause notice in accordance with law - However, Bench deems it fit to take into consideration the fact that the goods involved in the present litigation is a consignment of Tobacco and with the onset of monsoon, the goods are likely to get damaged – Therefore, Bench directs the writ applicant to deposit an amount of Rs.10,00,000/- with the authority concerned towards tax and penalty - To secure the interest of the State, Bench also directs the writ applicant to furnish Bank Guarantee of Rs.7,00,000/- that is the value of the goods and on deposit of the amount of Rs.10,00,000/- and furnishing of a Bank Guarantee to the tune of Rs.7,00,000/- of a nationalized bank, the authority concerned shall release the goods and the vehicle at the earliest - The deposit of bank guarantee shall abide by the final outcome after adjudication – Writ application disposed of: High Court [para 13, 14]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-1062-HC-AHM-GST

Hari Om Company Vs State Of Gujarat

GST - A consignment of arecanut was transported from Kerala so as to reach to Ahmedabad - While the goods were in transit, on 07.03.2020 in the Vehicle No.GJ-25-U-8721, the same came to be intercepted by the mobile squad of the GST at the Jambusar Padra Road, Vadodara - It appears that at the time of seizure and thereafter upon further inquiry many discrepancies were noticed by the authority as regards the documents etc. - at the time of detention, an order under Section 129 of the CGST Act, 2017 came to be passed determining the amount of tax and penalty to be paid by the writ applicant - Simultaneously, a notice was issued under Section 130 of the Act calling upon the writ applicant to show cause as to why the goods and conveyance should not be confiscated - Thereafter a final order came to be passed of confiscation of the goods and vehicle under Section 130 of the Act - As the final order of confiscation was passed without giving any opportunity of hearing to the writ applicant, the same came to be quashed by this Court and the matter was remanded to the authority to pass a fresh order after giving an opportunity of hearing to the writ applicant - the adjudication of the confiscation proceedings is going on – Petitioner submits that the goods and the conveyance came to be detained way back in the month of March, 2020 and continues to be under detention as on date – They, therefore, pray that the detention order dated 12.02.2020 in the Form GST MOV-6 and the confiscation notice dated 12.03.2020 in the Form GST MOV-10 may be quashed and set aside and the goods and the conveyance may be ordered to be released.

Held: Bench is of the view that it should not interfere at the stage of adjudication of the confiscation proceedings under Section 130 of the Act and which adjudication proceedings shall proceed in accordance with law - However, Bench is inclined to grant some relief to the writ applicant so as to protect the goods getting damaged, but at the same time keeping in mind the interest of the State also – Bench, therefore, directs the writ applicant to deposit an amount of Rs.4,20,000/- towards tax and penalty with the authority concerned and also furnish a bank guarantee to the tune of Rs.22,00,000/- of any Nationalized bank - On deposit of Rs.4,20,000/- towards tax and penalty along with the bank guarantee of Rs.22,00,000/- of any Nationalized bank, the authority concerned should release the goods and the vehicle at the earliest; the deposit of bank guarantee shall abide by the final outcome after adjudication – Writ application disposed of: High Court [para 9 to 11]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-1061-HC-AHM-GST

Associated Road Carriers Ltd Vs State Of Gujarat

GST - While the goods were in transit, the vehicle/conveyance came to be seized on the ground that the driver of the conveyance was not able to produce a valid E-way bill - Ultimately, a show cause notice was issued by the authority concerned and an order has been passed in MOV.09 dated 07.06.2020 calling upon the writ applicant to pay a particular amount of tax and penalty – Petitioner challenges this order before the High Court.

Held: In view of the fact that there is a statutory appeal provided against the impugned order, Bench is of the opinion that the writ applicant should avail the alternative remedy and prefer an appropriate appeal, if he deems fit – It is clarified that if the statutory appeal under Section 107 is preferred by the writ applicant and if the appeal is not disposed of at the earliest or in near future, it is always open for the writ applicant to prefer an application under Section 67(6) of the Act for interim release of the conveyance pending the final adjudication of the statutory appeal – Petition disposed of: High Court [para 5, 6]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-1055-HC-DEL-GST

Zones Corporate Solutions Pvt Ltd Vs Commissioner of CGST

GST - IGST - Refund - Writ petition has been filed seeking a direction to the respondents to refund Rs.1,40,99,149/- due to the petitioner along with interest which the respondents have failed to release despite two orders dated 23rd July, 2019 passed by the Commissioner (Appeals)-I, Delhi, which have attained finality - Petitioner submits that refund is due on account of exports made by the petitioner and supplies of computer hardware goods made to SEZ units - which are termed as 'zero rated supplies' in GST; that withholding of refund due to the petitioner is violative of Section 16 of IGST Act as well as Sections 54 and 56 of the CGST Act.

Held: Issue Notice - Matter to be listed on 03rd July, 2020: High Court

- Matter listed : DELHI HIGH COURT

2020-TIOL-1053-HC-KERALA-GST

Pazhayidom Food Ventures Pvt Ltd Vs Superintendent Commercial Taxes

GST - According to the revenue, the petitioner did not file the return and this resulted into a show cause notice for cancellation of registration dated 9th January 2020 - The aforementioned notice was replied and thereafter cancellation order dated 11.01.2020 was issued - Petitioner submits that the show cause notice in Form GST REG-17 did not mention about the date, month and year as well as the time for appearance of the petitioner; that, therefore, the contents of the same are vague and are not commensurate with the format prescribed in CGST Rules, 2017 where a column of day, month and year has been prescribed - Counsel for Respondent Revenue submits that petitioner was called upon to submit a reply within 7 days and in case of any failure or personal appearance would entail into an exparte order; that the petition is not maintainable in view of the alternative remedy available to the petitioner.

Held: On juxtaposing of both the notices viz. notice Ext.P2 as well as actual format ie., Form GST REG-17 contained in Rule No.22 (1), show cause notice Ext.P2 is not in order - The reference of date, month, year and time is conspicuously wanting - the notice lacks the compliance of the principles of audi alteram partem - It is on that account this Court had issued notice and sought the comments thus impelling to invoke, the extra ordinary jurisdiction of this Court as the order under challenge is without jurisdiction - Accordingly, the notice and the order of cancellation Exts.P2 and P4 are hereby quashed and the matter is remitted to the 2nd respondent to comply with the observation derived from the Form GST REG-17 - respondent is also directed to take up the issue at the appropriate level so that the affected parties are not compelled to approach this Court on account of non-compliance of principles of natural justice - Bench directs the petitioner to appear on 30th June 2020 at 11.30 a.m before the 2nd respondent - Petition is allowed: High Court [para 4, 5]

- Petition allowed: KERALA HIGH COURT

Mitha Ram Vs State Of Punjab

GST - Present petition is filed inter alia praying for grant of regular bail in complaint No.2355/2019 dated 13.08.2019, under Section 132(1) a,b,c of Punjab Goods and Service Tax Act, 2017, filed by respondent No.2 before Ld. JMIC, Amloh, District Fatehgarh Sahib, Punjab - Petitioner submits that he is an Income tax payee and for the previous years his income has been shown very low to the tune of Rs.3 lacs approximately per year and that he has been falsely implicated in this case - Petitioner further submits that on 02.08.2019, a show cause notice has been given to the petitioner under the provisions of Section 74 of the Punjab GST Act, 2017; that out of 29 witnesses, only 01 witness has been examined till date; that because of the present COVID-19 situation and also the fact that trial is likely to take some time, detention of the petitioner in jail is dangerous to his life and, therefore, petitioner is entitled for regular bail.

Held: Considering the existing situation due to COVID-19 and the fact that trial is likely to take some time, Court deems it appropriate to direct the release of the petitioner on regular bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate concerned, subject to his furnishing bail bonds/surety bonds - Petitioner is also directed to furnish security worth Rs. 10 lacs in the form of bank guarantee/original paper of immovable property, within 15 days - Petition stands disposed of: High Court

- Petition disposed of: PUNJAB AND HARYANA HIGH COURT

C P Marble Vs UoI

GST - Petitioner challenges vires of Rule 117(1A) of CGST Act, 2017 and seeks direction to Respondent to permit Petitioner to electronically upload form TRAN-1 or avail input tax credit in monthly return GSTR-3B - Petitioner contends that issue involved is squarely covered by judgment of this Court in the case of Adfert Technologies Pvt. Ltd. - 2019-TIOL-2519-HC-P&H-GST , SLP filed by Revenue against aforesaid decision havine been dismissed - Petitioner also submits that Delhi High Court in the case of Brand Equity Treaties Ltd. 2020-TIOL-900-HC-Del-GST has permitted Petitioners to file TRAN-I on or before 30.06.2020 and further directed the Respondents Revenue to permit all other similarly situated tax payers to file TRAN-I on or before 30.06.2020; that this opinion has been approved in SKH Sheet Metals Components - 2020-TIOL-1031-HC-DEL-GST .

Held: Delhi High Court though has not declared Rule 117(1A) ultra vires the Constitution, nonetheless treated as violative of Article 14 of Constitution of India being arbitrary, discriminatory and unreasonable - in the instant case, the Petitioner has challenged vires of Rule 117 (1A) of Rules, however Bench does not think it appropriate to declare it invalid as it is of the considered opinion that Petitioner is entitled to carry forward Cenvat Credit accrued under Central Excise Act, 1944 - Repeated extensions of last date to file TRAN-1 in case of technical glitches as understood by Respondent vindicate claim of the Petitioner that denial of unutilized credit to those dealers who are unable to furnish evidence of attempt to upload TRAN-1 would amount to violation of Article 14 as well Article 300A of the Constitution of India - In view of decision of this Court in the case of Adfert Technologies Pvt. Ltd. (supra) and Delhi High Court in the case of Brand Equity Treaties Ltd. (supra) present petition deserves to be allowed and is accordingly allowed - The Respondents are directed to permit Petitioner to upload TRAN-1 on or before 30.06.2020 and in case Respondent fails to do so, the Petitioner would be at liberty to avail ITC in question in GSTR-3B of July 2020 - respondents would be at liberty to verify genuineness of claim(s) made by Petitioner: High Court [para 6 to 8]

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

Goods And Services Tax Network Vs Leo Distributors

GST - Single Judge had directied the appellants Revenue (in the present Writ appeal) to facilitate filing of GST TRAN-1 Forms electronically by making necessary arrangements in the web portal and in the event of the same being not possible, permitting manual filing of such returns - Being aggrieved with this order, Revenue is in appeal.

Held: Facts are identical to the case of Blue Bird Pure Pvt.Ltd. - 2019-TIOL-1564-HC-DEL-GST - As has been noticed in the various decisions, there arise a number of teething problems in the initial stages of a new regime and the assessees too are not well versed in the ways and means provided in the new enactment and those prescribed by rules; both on the substantive and procedural aspects - The transition from the old regime to the new one as held by the High Court of Delhi in Brand Equity Treaties Limited - 2020-TIOL-900-HC-DEL-GST poses formidable and unprecedented problems in successful migration, which could be attributed either to the failure of the system as maintained by the Department or the inexperience of the assessee in the ways and means provided by the new regime - The fact that the petitioner/1st respondent had attempted uploading of the form, within the period is more than established by the system log - The rejection of the return so submitted was due to the wrong table having been filled up, which is not with any ulterior motive; but was only for reason of inadvertence prompted by inexperience - respectfully following the persuasive precedents referred, Division Bench does not find any cause for interference with the judgment of the Single Judge - Division Bench decision of the High Court of Bombay in Nelco Limited] - 2020-TIOL-273-HC-MUM-GST is distinguishable on facts for reason of the assessee therein having not at all made an attempt to submit the form; which failure was established on the basis of the system log as available with the Department - Revenue appeal is rejected by upholding the judgment as also reaffirming the directions therein - Writ appeal is dismissed: High Court [para 9, 10]

- Appeal dismissed: KERALA HIGH COURT

AAAR CASES

2020-TIOL-31-AAAR-GST

Sadguru Seva Paridhan Pvt Ltd

GST - AAR had held that Fusible interlining cloth is classifiable under Heading 5903 in Chapter 59 of the First Schedule of the Customs Tariff Act, 1975 - appeal of applicant to Appellate Authority - No merit in the appeal, hence dismissed - Order of AAR upheld: AAAR

- Appeal dismissed: AAAR

AAR CASES

2020-TIOL-145-AAR-GST

Shree Hari Engineers And Contractors

GST - Applicant has been awarded a Tender by M/s. Railtel Corporation of India limited (A Government of India Undertaking, Ministry of Railways) and the work to be performed is that of Excavation of trenches and laying of OFC(Optical Fiber Cable) through ducts, testing, commissioning of OFC - applicant submitted that the said work is an Original work; that the end use of the Optical Fibre Cable is for the purpose of connecting with the Gram Panchayat for socio-economic development hence it is not for the purpose of Commerce, Industry or any other business or profession; that, therefore, they are entitled to claim GST @12% in terms of Sl. No. 3(vi)(a) of 11/2017-CTR.

Held: Work carried out by the applicant i.e. "Excavation of Trenches and laying of OFC through ducts, testing, commissioning of OFC and maintenances etc. is not a function covered under the list of functions entrusted to a Municipality under Article 243 W of the Constitution of India or the list of functions entrusted to a Panchayat under Article 243 G of the Constitution of India - In view of the above, M/s. Railtel Corporation of India ltd. does not fall under the category of 'Government Authority' - Further, the work done by the applicant for M/s. Railtel Corporation of India ltd. involves digging of trenches and laying of optical fiber cables for the purpose of supply of internet connection to the Gram Panchayat, however, it cannot be construed that the optical fiber cables laid underground are meant predominantly for use other than for commerce, industry, or any other business or profession - Therefore, Contract of the applicant M/s. Shree Hari Engineers and Contractors with M/s. Railtel Corporation of India ltd. does not fall under the Notification 24/2017-Central Tax (Rate) [(which amends original Notification No.11/2017-Central Tax(Rate) dated 28.06.2017)] Sr.No.3 (vi)-Construction Service or Original Work to Government Authority so as to attract GST @12%: AAR

- Application disposed of: AAR

2020-TIOL-144-AAR-GST

Amba Township Pvt Ltd

GST - Part-B of Sector-4 of township cannot be considered as a standalone housing project since it shares common land, common facilities and common entrance with Part-A of Sector-4 of the township and since 50% of FAR/FSI of the entire housing project of Sector-4 (of Amba Township Pvt. Ltd.) comprising of Part-A and Part-B has not been used for construction of dwelling units with carpet area of not more than 60 sq.meters (as per the requirement in Notification F. No.13/06/2009 - INF dated 30.03.2017 of the Government of India, Ministry of Finance, Department of Economic Affairs), the said housing project cannot be considered as an 'affordable housing project' - Applicant is not eligible for the benefit of reduced rate as provided under Entry Number 3(v)(da) of the Notification No. 11/2017-Central Tax (Rate) as amended by Notification No. 01/2018-Central Tax (Rate) dated 25.01.2018, available for houses constructed with a carpet area of 60 square metres per house: AAR

- Application disposed of: AAR

2020-TIOL-143-AAR-GST

A B Enterprise

GST - Applicant is eligible to claim exemption benefit under Sr.No.3 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 for pure services (supply of manpower, security service) provided to Central Government, State Government, Local Authorities, Governmental Authorities, Government Entities subject to the condition that the services provided to these entities mentioned above are services provided by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution of India or in relation to any function entrusted to a Municipality under Article 243W of the Constitution of India: AAR

- Application disposed of: AAR

2020-TIOL-142-AAR-GST

GST - Service of transportation of goods in barrages from mother vessel to daughter vessel from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port is neither covered in the definition of ‘national waterways', as defined in Clause (h) of section 2 of the Inland Water Ways Authority of India Act, 1985 nor covered in the definition of ‘other waterway on any inland water', as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917 - Consequently, the same does not qualify for exemption contained at Sr. No. 18 of the Notification No. 12/2017-Central Tax (Rate) , dated 28.06.2017 - The length of the waterway between which the service of transport is performed by the applicant, is the part of the "Arabian Sea" and not a part of any canal, river, lake or other navigable water within a State - Thus, contention of applicant that the transportation is being done on the River Tapi, appears to be incorrect - As regard the contention that the entire activity is being done by them under territorial water only, it is worthwhile to mention that the Arabian Sea is not a part of the State of Gujarat and, hence, not covered under the term "Other waterway on any inland water" so as to be eligible for exemption of the Services by way of transportation of goods by inland waterways - as per the Google Earth Map, the General Lighterage Area of Magdalla Port (where the Mother Vessels are anchored), does not fall within the limit of the National Waterway 100-Tapi River as declared vide the National Waterways Act, 2016, therefore, contention, that the transportation is being done on the River Tapi, appears to be incorrect : AAR

2020-TIOL-141-AAR-GST

GST - Service of transportation of goods from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port (From where the Mother Vessel are anchored) or vice versa, is neither covered in the definition of 'national waterways', as defined in Clause (h) of section 2 of the Inland Water Ways Authority of India Act, 1985 nor covered in the definition of 'other waterway on any inland water', as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917 and consequently does not qualify for exemption under exemption contained at Sr. No. 18 of Notification No. 12/2017-Central Tax (Rate) - The length of the waterway between which the service of transport is performed by the applicant, is the part of the "Arabian Sea" and not a part of any canal, river, lake or other navigable water within a State - Thus, contention of applicant that the transportation is being done on the River Tapi, appears to be incorrect - As regard the contention that the entire activity is being done by them under territorial water only, it is worthwhile to mention that the Arabian Sea is not a part of the State of Gujarat and, hence, not covered under the term "Other waterway on any inland water" so as to be eligible for exemption of the Services by way of transportation of goods by inland waterways - as per the Google Earth Map, the General Lighterage Area of Magdalla Port (where the Mother Vessels are anchored), does not fall within the limit of the National Waterway 100-Tapi River as declared vide the National Waterways Act, 2016, therefore, contention, that the transportation is being done on the River Tapi, appears to be incorrect : AAR

2020-TIOL-140-AAR-GST

GST - Fuel conversion electronic parts viz. change over switch, emulator, timing advance processor, pressure gauge mainly used to help the engine of vehicles namely, motor cars, vans, buses etc. to switch over/change the fuel from petrol to CNG/LPG and vice-versa and supplied by the applicant is classifiable under HSN Code 8708 9900 and is covered by Sr.No.170 of Schedule-IV of Notification No:1/2017-Central Tax (Rate) dated 28.06.2017 as on which GST applicable is 28% (14% SGST + 14% CGST): AAR

2020-TIOL-139-AAR-GST

GST - Applicants are engaged in the business of purchasing LPG Gas (Bulk) through Tanker and thereafter, refilling the same in two types of bottles - 17 kgs. and 21 kgs. and sell it to Commercial Customer also refilling the gas in bottles of 12 kgs. and 15 kgs. and selling it to Domestic Customers - Applicant has sought a ruling on the following viz. (1) Determination of the liability to pay Tax on sales of Gas sold in Bottle to Commercial Customer and Gas sold in Bottle to Domestic Customer & (2) Entire I.T.C. @ 18% eligible on Purchases of LPG Gas (bulk) through Tanker?

Held: Applicant would be liable to pay 18% GST on the LPG sold by them to their Commercial Customers in terms of Sr.No.453 of Schedule-III of Notification No. 1/2017-Central Tax(Rate) - Also, they would be liable to pay 18% on the LPG sold to their Domestic Customers for the period upto 24.01.2018 under the said entry and GST @5% on the LPG sold to their Domestic Customers with effect from 25.01.2018 onwards in view of the amending Notification No: 06/2018-Central Tax (Rate) dated 25.01.2018 inserting a new Serial no. 165A in Schedule I of the subject notification 1/2017-CTR - Applicant is eligible to take the entire input cenvat credit @ 18% on purchases of LPG Gas in bulk through Tanker subject to the fulfilment of the conditions/provisions (wherever applicable) for taking input tax credit as envisaged in Sections-16, 17 and 18 of the CGST Act, 2017 and Rules-36, 37, 40, 41 and 42 of the Rules, 2017: AAR

- Application disposed of :AUTHORITY FOR ADVANCE RULING

2020-TIOL-138-AAR-GST

Security Printing And Minting Corporation Of India Ltd

GST - Heat Activated Ultra-Violet (HAUV) Polyester film with Adhesive coating and UV printing is appropriately classifiable under Chapter Heading 3919 @18% GST and not under Chapter Heading 4911@12% GST: AAR

- Application disposed of: AAR

2020-TIOL-137-AAR-GST

Shalini Manish Mittal

GST - To answer the question on which the ruling is sought would require the Authority to discuss the place of supply which is beyond the jurisdiction of the authority in view of s.97 of the CGST Act, 2017 -Application is, therefore, not maintainable and thus liable for rejection: AAR

- Application rejected: AAR

2020-TIOL-136-AAR-GST

Lear India Engineering Llp

GST - Applicant has voluntarily withdrawn the question on which they had sought a ruling and which is allowed - Insofar as the question as to whether the design and development services provided by them to their entities situated abroad would fall under the category of OIDAR services, the same is not admitted in view of the proviso to section 98(2) of the CGST Act, 2017 inasmuch as the question raised is already pending before the department in view of the SCN issued to the applicant on 27.08.2018: AAR

- Application dismissed: AAR

2020-TIOL-135-AAR-GST

Panbase Resources Pvt Ltd

GST - To answer the question on which the ruling is sought would require the Authority to discuss the provisions of s.13 and s.2(6) of the IGST Act, 2017 pertaining to export of services - Thus, to decide the issue, the Authority would be required to discuss the ‘place of supply' in the subject case - Questions on which Advance ruling is sought shall be in respect of matters or issues mentioned in s.97(2)(a) to (g) only - "Place of supply of service” does not find mention in s.97 of the Act, 2017 - Hence answering this question is beyond the jurisdiction of the authority in view of s.97 of the CGST Act, 2017 - Application is, therefore, not maintainable and thus liable for rejection: AAR

- Application rejected: AAR

NAA CASES

2020-TIOL-32-NAA-GST

Director-General Of Anti-Profiteering Vs Elegant Properties

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Project Elegant Berkeley - Applicant alleges that the respondent had not provided any tax invoice for the supply of construction service, charged higher GST @18% instead of @12% w.e.f 01.07.2017 and also Service tax was charged after GST came into force - applicant also alleges that respondent had raised the cost of the flat from Rs.99 lakhs (agreement value) to Rs.1,05,48,000/- after implementation of GST by extracting Service tax on the already paid amount in the pre-GST era and also charged GST @18% (instead of 12%) on the balance amount after introduction of GST - DGAP in its report has concluded in its report dated 04.10.2018 that the allegation in the application dated 28.05.2018 related to excess charging of Service Tax and GST by the respondent could not be redressed through the provisions of s.171 of the GST Act, however, the Authority vide letter dated 15.11.2018 referred the matter back to the DGAP under rule 133(4) of the Rules to conduct investigation after observing due formalities and also incorporating the observations dated 07.11.2018 made by the Screening Committee of Karnataka on the said report dated 04.10.2018 - DGAP in its further report has inter alia observed that the Input Tax credit pertaining to the unsold units may not fall within the ambit of this investigation and the respondent was required to recalibrate the selling price of such units to be sold to the prospective buyers by considering the net benefit of additional input tax credit available to him post-GST; that the ITC as a percentage of the turnover that was available to the respondent during the pre-GST period was 0.49% and during the post-GST period was 1.41% and which confirmed that the respondent had benefited from additional ITC to the tune of 0.92% of the turnover; that it could be deduced that the additional ITC of 0.92% of the turnover should have resulted in the commensurate reduction in the base price as well as cum-tax price, therefore, in terms of s.171 of the Act, the benefit of such additional input tax credit was required to be passed on by the respondent to the recipients; that the benefit of ITC that was needed to be passed on to the recipients came to Rs.1,42,369/- which included GST @12% on the base profiteered amount of Rs.1,27,115/-; home buyer/unit-wise break up of this amount is given in Annexure-45 of the Report; that insofar as the applicant is concerned, the profiteered amount is Rs.21,113/- (including GST on the base profiteered amount of Rs.18,851/-) which is the benefit of ITC that is required to be passed on to applicant no. 1; that supplies have been made by the respondent only in the State of Karnataka - Authority agrees with the report of the DGAP - profiteered amount as indicated by the DGAP needs to be paid by the respondent along with interest @18% to the recipients as per rule 133(3)(b) of the CGST Rules failing which the amount would be recovered by the Commissioner concerned and paid to the eligible house buyers - in view of contravention of s.171 of the Act, respondent is liable for imposition of penalty u/s 171(3A) of the Act; SCN to be issued accordingly - amounts to be paid by respondent within three months and a compliance report is to be submitted by the Commissioner CGST/SGST concerned within four months - order passed keeping in view the notification 35/2020-CT - insofar as the contention of the applicant that the respondent had increased the cost of the flat from Rs.99 lakhs to Rs.1,05,48,000/- after implementation of GST by charging an extra sum of Rs.3,78,000/- and had also refused to provide appropriate tax invoice, the said issue is outside the purview of the Anti-Profiteering Authority and which may be due to tax avoidance and the applicant may approach the appropriate forum for redressal of the said issue: NAA

- Application disposed of: NAA

2020-TIOL-31-NAA-GST

Director General Of Anti-Profiteering Vs Radicon Infrastructure And Housing Pvt Ltd

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Project Vedantam - Applicant alleges that the respondent had not passed on the benefit of ITC which had accrued to him, by commensurate reduction in the price of the flat after implementation of GST w.e.f 01.07.2017 - DGAP has in its report submitted that the ITC as a percentage of the total turnover which was available to the respondent during the pre-GST period from April 2016 to June 2017 was 3.40% and during the post-GST period w.e.f July 2017 to August 2018 it was 8.68% which showed that post-GST the respondent had benefited from additional ITC to the extent of 5.28% of the taxable turnover; that the amount profiteered by the respondent is Rs.40,92,054/- including GST @12% on the base profiteered amount of Rs.36,53,620/- and which includes an amount of Rs.21,496/- including GST @12% on the base amount of Rs.19,193/- which has been profiteered by the respondent from applicant no. 1 - Respondent has submitted that out of the total benefit alleged in the DGAP report of 5.28%, benefit of 4% has already been passed on to all the homebuyers - DGAP in its further report stated that the respondent had claimed that he had given an amount of Rs.1,56,56,749/- as discount to the various customers on account of prompt and timely payment, waiver of possession charges and interest on late payments, however, now he had gone back on his earlier stand and claimed that Rs.23,76,551/- were given on account of ITC for which he had not submitted any documentary evidences such as credit notes or cheques etc. - Authority had sought a fresh report from the DGAP by sending the case back u/r 133(4) of the Rules and a report was received - Authority agrees with the report of DGAP and determines the profiteered amount as Rs.40,92,054/- in terms of rule 133(1) of the Rules and directs the respondent to pass on the benefit of Rs.6982/- [Rs.21,496 minus 14,514/-] to the applicant no. 1 and Rs.40,70,558/- to the other buyers as per the details given in Annexure-18 of the DGAP report dated 05.12.2018 along with interest @18% in terms of rule 133(3)b) of the CGST Rules, 2017 - for the contravention, penalty is imposable u/s 171(3A) of the Act and a SCN is required to be issued therefor - respondent to comply with the order within three months and it is directed that the Commissioners of CGST/SGST concerned monitor this order and ensure that the profiteered amount is passed on to all the eligible buyers and report submitted within four months - order passed taking note of notification 35/2020-CT: NAA

- Application disposed of: NAA

2020-TIOL-30-NAA-GST

Director General Of Anti-Profiteering Vs Whirlpool Of India Ltd

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant alleges profiteering by the respondent on the supply of ‘Refrigerator Whirlpool FP313D Protton Roy Mirror” by not passing on the benefit of reduction in the rate of tax w.e.f 01.07.2017 by way of commensurate reduction in the price - applicant relies on two invoices issued during the pre-GST and the post-GST period - DGAP in its report has submitted that the respondent has increased the basic price (excluding tax) of the impugned product although there was a reduction in the rate of tax after the introduction of GST inasmuch the commensurate benefit of reduction in the GST rate was not passed on to the recipients - DGAP after considering the revised details of the VAT reversal in lieu of CST, Entry Tax and the CST in Assam and Gujarat has stated that the average tax incidence in pre-GST period was about 30% and which got reduced to 28% on introduction of GST, however the tax incidence on introduction of GST had marginally increased in Delhi from 27.86% to 28% and in Haryana from 27.96% to 28% - DGAP has accordingly computed the amount of profiteering made by the respondent for failing to pass on the benefit of reduction in the rate of tax to the recipients in terms of s.171 of the Act and which comes to Rs.4,07,451/- including GST during the period July 2017 to August 2018 - the profiteered amount having been arrived at by comparing the State-wise average basic price (after discount) of the impugned goods during the period April to June 2017 with the transaction-wise basic price (after discount) during the period July 2017 to August 2018 for all the States (except Delhi and Haryana) where the tax incidence has increased on introduction of GST - Authority is of the view that the mathematical methodology of the DGAP appears to be correct, reasonable, justifiable and in consonance with the provisions of s.171 of the Act - profiteered amount of Rs.4,07,451/- has been rightly computed by the DGAP - respondent is directed to deposit the profiteered amount along with interest to be calculated @18% in the Consumer Welfare Funds of the Central and the State government concerned as per provisions of rule 133(3)(c) of the Rules in the ratio 50:50 - amount is to be deposited within three months - Commissioners concerned to submit report within four months - as respondent has denied the benefit of rate reduction of GST to its customers in contravention of s.171(1) of the Act, they are liable for imposition of penalty in terms of s.171(3A) of the Act r/w rule 133(3)(d) of the Rules, 2017; SCN to be issued in this regard - DGAP is also directed to further investigate in respect of other products on which rate of tax was reduced - read with notification 35/2020-CT, the present order is passed: NAA

- Application disposed of: NAA

NAA INTRIM ORDER

NAA_IO_19_2020

Himalaya Drug Company

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant has alleged that the respondent has not passed on the benefit of reduction in the GST rate w.e.f 15.11.2017 to his customers but had instead increased the base prices of his products by keeping the Maximum Retail Price (MRP) unchanged.

Held: DGAP has computed the profiteered amount by comparing the average pre-rate reduction base prices of the impacted products with the average post rate reduction base prices in respect of both the tax reductions - the above mathematical methodology adopted by DGAP to compute the profiteered amount is not in consonance with the methodology approved by the Authority in the case of tax reductions decided by it as the profiteered amount has been determined by comparing the average pre-rate reduction base prices with the actual post rate reduction prices - such a methodology is not correct, logical, appropriate and in consonance with the provisions of s.171 of the CGST Act, 2017 - therefore, the report dated 22.10.2019 furnished by the DGAP cannot be accepted - DGAP is, therefore, directed to reinvestigate the case under rule 133(4) of the Rules on the three issues as mentioned in the order - reinvestigation to be completed within a period of three months and report to be submitted u/r 129(6) of the Rules - read with notification 35/2020-CT, the present Interim order is passed: NAA

- Interim order passed: INTRIM ORDER

GST NOTIFICATION & INSTRUCATION

CGST RULES NOTIFICATION

cgst_rule_49

Seeks to bring into force Sections 118, 125, 129 & 130 of Finance Act, 2020 in order to bring amendment to Sections 2, 109, 168 & 172 of CGST Act w.e.f. 30.06.2017.

cgst_rule_50

Seeks to make seventh amendment (2020) to CGST Rules.

cgst_rule_51

Seeks to provide relief by lowering of interest rate for a prescribed time for tax periods from February, 2020 to July, 2020.

cgst_rule_52

Seeks to provide one time amnesty by lowering/waiving of late fees for non furnishing of FORM GSTR-3B from July, 2017 to January, 2020 and also seeks to provide relief by conditional waiver of late fee for delay in furnishing returns in FORM GSTR-3B for tax periods of February, 2020 to July, 2020.

cgst_rule_53

Seeks to provide relief by waiver of late fee for delay in furnishing outward statement in FORM GSTR-1 for tax periods for months from March, 2020 to June, 2020 for monthly filers and for quarters from January, 2020 to June, 2020 for quarterly filers

cgst_rule_54

Seeks to extend due date for furnishing FORM GSTR-3B for supply made in the month of August, 2020 for taxpayers with annual turnover up to Rs. 5 crore.

IGST RULES NOTIFICATION

igst_rule_04

Seeks to bring into force Section 134 of Finance Act, 2020 in order to bring amendment to Section 25 of IGST Act w.e.f. 30.06.2017.

igst_rule_05

Seeks to provide relief by lowering of interest rate for a prescribed time for tax periods from February, 2020 to July, 2020.

UTGST RULES NOTIFICATION

utgst_rule_02

Seeks to provide relief by lowering of interest rate for a prescribed time for tax periods from February, 2020 to July, 2020.

GST INSTRUCTION

instruction no 3/2/2020-GST

Payment of GST by real estate promoter/developer supplying construction of residential apartment etc, on the shortfall value of inward supplies from registered supplier at the end of the financial year

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