GST
DELHI SGST RATE NOTIFICATION CORRIGENDUM
02/2017/Corrigendum
Corrigendum for CGST Goods Rates Notification 2
01/2017/Corrigendum
Corrigendum for CGST Goods Rates Notification 1
JAMMU AND KASHMIR
CGST (Extension To Jammu & Kashmir) Bill - 2017 - As introduced in Lok Sabha
IGST (Extension To Jammu & Kashmir) Bill - 2017 - As introduced in Lok Sabha
CASE LAWS
2017-TIOL-1449-HC-MUM-IT
CIT Vs CANCER AID AND RESEARCH FOUNDATION: BOMBAY HIGH COURT (Dated: July 25, 2017)
Income tax - Section 12AA
Keywords - withdrawal of registration - medical foundation - sale of land - payment of scholarship
The Revenue preferred the present appeal challenging the order, whereby the ITAT had quashed the decision of CIT(A) in cancelling the registration of the Assessee Trust. The counsel for Revenue urged that the land which was sold by the trust was owned by it for commercial purpose. Even on the website, the trust had notified the land for sale as a property. According to the counsel, the said act was not in consonance with the object of the trust. According to the counsel, even a luxury car of BMW was purchased by the trust in the name of a trustee, itself showed that the trust was defeating its object. According to the counsel, the Tribunal had failed to consider that the payment of scholarship of the students was routed through PAAK foundation, wherein, the trustees of the said Assessee trust were common.
On appeal, the HC held that,
Whether registration granted to a medical foundation can be withdrawn, solely because the foundation had sold a land which was previously owned by it for purpose of constructing hospital - NO: HC
++ there may not be any dispute with the proportion that if the trust does not fulfill its object or engages in any activity against the object of the trust, then the DIT(E) has power to cancel the registration of the trust u/s 12AA. The fact that the Assessee trust had put land on sale is not disputed. However, an explanation has been given that assessee had undertaken construction of the hospital and constructed substantial part of the cancer hospital. However, could not complete construction because of the financial stringency, and to achieve the further object of the trust decided to sale the same. The sale had not materialised and the said property is not sold. It cannot be said that the Tribunal has erred in its conclusion;
++ with regard to purchase of BMW car, it was stated that though the said car was purchased in the name of a Trustee, it was used for the purpose of trust only and the deduction of the same which was disallowed, has been allowed by the Commissioner and confirmed by the Tribunal. It shows that the trust has purchased the said car for its own use. As far as payment of scholarship is concerned, it has come on record that the amount of scholarship has been paid to the students directly through their educational institutions and not through PAAK foundation, though, initially it was decided to route the said payment through PAAK foundation, but the same has not been done and the amount which was deposited for scholarship with PAAK foundation has been taken back by the Assessee. The Tribunal after appreciation of evidence has arrived at plausible conclusion.
Revenue's appeal dismissed
2017-TIOL-1447-HC-MAD-CX
MOHAN BREWERIES AND DISTILLERIES LTD Vs CCE: MADRAS HIGH COURT (Dated: June 13, 2017)
CX - Whether the demand for recovery of modvat credit with interest as per notification no.14 of 1997-CE(NT) dated 3.5.1997 read with section 87 of the Finance Act, 1997 [Finance Act] and rule 57-I of the Central Excise Rules, 1944 [Rules] and section 11A of the Central Excise Act [CEAct] for the period 23.7.1996 to 28.2.1997 is justified ?
HELD - I t is quite clear on a perusal of the record that the appellant had claimed modvat credit on furnace oil at the rate of 15% ad valorem, based on the notification no.5/94-CE (NT) dated 1.3.1994 - a bare perusal of this notification would show that it was issued under rule 57A of the Rules -therefore, the assertion made on behalf of the appellant that neither the later notification dated 3.5.1997, whereby, the credit was restricted to 10% ad valorem, nor the provisions of section 87 of the Finance Act would impact the appellant, is a submission, whichis completely unsustainable - as a matter of fact, based on the restriction brought about by the latter notification, i.e., notification dated 3.5.1997, the appellant, in its reply dated 26.3.1998, had indicated to the Department that it had "expunged" credit amounting to Rs.2.54 lakh for the period spanning between 3.5.1997 and 19.6.1997 -in this behalf, the appellant had given reference to the notification dated 3.5.1997 -therefore, the appellant cannot contend to the contrary, as it would be inconsistent with the record obtaining in the case - quite clearly, section 87 of the Finance Act enhances the period of impact contemplated under notification dated 3.5.1997 as it brings, also, within its fold the period spanning between 23.7.1996 and 3.5.1997 -therefore, as per provisions of section 87 of the Finance Act, the restriction on claiming modvatcredit would apply for the said period, as well-submissions advanced by the appellant that the recovery sought to be made is time barred, is unsustainable and is, accordingly, rejected- in the instant case, the appellant had taken credit on specified duty paid on inputs, for the period in issue, by relying upon the notification dated 1.3.1994, issued under rule 57A -therefore, the restriction imposed via the subsequent notification, i.e., notification dated 3.5.1997, which was given retrospective effect by virtue of provisions of section 87 of the Finance Act, would apply, contrary to what has been contended by the appellant -the submission of the appellant that section 87 of the Finance Act would only validate those actions, if any, which had been initiated for recovery of excise credit taken by an assessee prior to the enactment of the said provision, is misconceived, as a careful perusal of section 87 of the Finance Act, would show that it not only impacts the notification dated 3.5.1997, operable with retrospective effect, i.e., from 23.7.1996, but also validates any action or, thing taken or done or purported to have been taken or done on or after 23.7.1996, but before 3.5.1997 - therefore, this submission of the appellant is also rejected - consequently, the question of law framed in the matter would have to be answered in favour of the Revenue and against the appellant - appeal dismissed : HIGH COURT [para 11.1, 11.2, 11.3, 15, 16.1, 16.2, 17, 17.1, 17.2, 18, 18.1, 18.2, 19, 19.1, 20]
Appeal dismissed
2017-TIOL-1446-HC-ALL-MISC
GNG ENTERPRISES Vs STATE OF UP: ALLAHABAD HIGH COURT (Dated: July 28, 2017 )
GST - Petitioner firm is engaged in construction & development of multiplex theatres, in Saharanpur district - A scheme under the U.P. Entertainments & Betting Tax Act, 1979 permitted multiplex owners to collect & retain certain percentage of Entertainment tax upto 31.03.2020 - The petitioner firm was permitted by the Entertainment Tax Officer /Collector to retain such amount of tax so as to enable it to recover cost of construction of multiplex - With the coming of CGST & UP GST Act, 2017, the erstwhile Act was repealed vide s.174 of the Act, 2017 but with the saving clause that it will not effect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act provided the tax exemption granted under the repealed Act by any notification has not been rescinded or revoked by a fresh notification on or after the enforcement of the G.S.T - Petitioner claimed right to collect entertainment tax as in the past upto 31st March, 2020 as no such Notfn. repealing or revoking the tax exemption was issued.
Held - Counsels for the respondents directed to file counter affidavits informing if the scheme granting tax benefit to the petitioner was still in effect or stood revoked, either automatically or by any fresh notification - Petition to be listed for admission/final disposal on 18.09.2017: High Court
Petition listed on 18.09.2017
2017-TIOL-2714-CESTAT-MUM
ULTRATECH CEMENT LTD Vs CCE: MUMBAI CESTAT (Dated: February 8, 2017)
ST - W hether the appellant is required to discharge service tax liability under GTA on reverse charge basis for the period 01.01.2005 to 31.12.2009 in respect of amounts paid by them to two transport companies for movement of material i.e. 'clinker' from their own jetty to the cement manufacturing premises - lower authorities held against the appellant, therefore, appeal before CESTAT. Held: In the records it is nowhere mentioned that these two transport companies issued consignment note either individually or jointly for the movement of the cement clinkers from jetty to the manufacturing premises of the appellant - as per rule 4B of the STR, 1994, the goods transport agency shall issue consignment note to respondent in relation to the transport of goods in a road carriage - from the Explanation to the rule, it is clear that the consignment note should have specific particulars, therefore, interpretation by lower authorities that any document, by whatever name, needs to be considered as consignment note is misplaced as in this case the transporting companies have only raised invoices for transportation of cement clinkers as per the contract and which did not satisfy the requirement of consignment note - it cannot, therefore, be said that Goods Transport Agency services are rendered - impugned order is unsustainable, hence set aside & appeal is allowed: CESTAT [para 6.2, 6.3, 6.5]
Appeal allowed
2017-TIOL-2713-CESTAT-MUM
CST Vs TATA TELE SERVICE LTD: MUMBAI CESTAT (Dated: June 8, 2017)
ST - Revenue in appeal against o-in-o pleading that although there was a proposal in the SCN for imposition of penalty u/r 15(1) of CCR, the adjudicating authority had neither discussed nor passed any order on such proposal - Respondent submitting that against the same order, the assessee had appealed before the Tribunal and the same was disposed of as - 2015-TIOL-628-CESTAT-MUM whereby though the service tax demand was upheld for the normal period of limitation, the penalties were set aside, therefore, Revenue appeal does not survive. Held: Though Tribunal has disposed of all the appeals of the respondent against the very same impugned order but impugned order did not decide penalty proposed in the SCN under Rule 15(1) of Cenvat Credit Rules, 2004, therefore, this issue was not subject matter of the respondent's appeal - Since issue of penalty under Rule 15(1) was not decided by the Commissioner, the matter limited to the proposal of penalty under Rule 15(1) made in the SCN is yet to be decided by the Commissioner - matter, therefore, remanded to the Commissioner: CESTAT [para 4]
Matter remanded
2017-TIOL-2712-CESTAT-MUM
ONGC LTD Vs CCE: MUMBAI CESTAT: (Dated: April 28, 2017)
ST - Appellant during the period April 2007 to January 2011 availed CENVAT credit in respect of service tax paid by M/s BPCL on the strength of debit notes - department issued SCN alleging that as per rule 9(1)(f) of CCR, 2004, invoice, bill or challan issued by provider of input service on or after 10 September 2004 are only eligible documents for availing CENVAT credit - AA denied credit and imposed penalty - appeal to CESTAT. Held: Nomenclature has no significance - important criteria is that the information mentioned in rule 4A of STR, 1994 should appear in the documents which is raised for service charges as well as service tax component - it can be seen that the debit note clearly carries all the information required under rule 4A of the STR, 1994 - nature of invoice or bill or challan or debit note are one and the same and treatment of all these documents are given in the same manner in the books of the assessee - against this debit note, service recipient is under obligation to make payment of service charges along with service tax, therefore, there is no reason to deny the credit of service tax taken on the strength of a debit note - issue is also no longer res integra in view of decisions of Tribunal in this regard - impugned order is set aside and appeal is allowed: CESTAT [para 5]
Appeal allowed
2017-TIOL-2711-CESTAT-MUM + Story
POLYDRUG LABORATORIES PVT LTD Vs CCE: MUMBAI CESTAT (Dated: July 03, 2017)
CX - Rule 2(k) of CCR, 2004 - Paver blocks used for repair of factory road cannot be said to have been used in or in relation to the manufacture of final product - As per Explanation 2 of the definition of 'input' all the goods used for construction of factory shed or laying of foundation have been excluded, road of the factory premises is similar to the construction activity; accordingly, it falls under the exclusion category - paver blocks does not qualify as an input - CENVAT credit rightly denied - impugned order upheld and appeal dismissed: CESTAT [para 4, 5]
Appeal dismissed
