CGST ORDER

cgst_order01

Govt formally issued order extending due dates for filing of GSTR - 9 and GSTR - 9C

AAAR CASE

2018-TIOL-26-AAAR-GST

Opta Cabs Pvt Ltd

CGST - Appellant is in the business of Taxi Aggregation Service and Taxi Service and states that the billing is done in the name of the Taxi Driver who provides the service for the particular trip and the taxi driver would collect the amount from the customer on the completion of the trip - Ruling was sought on whether the money paid by the customer to the driver of the cab for the services of the trip is liable to GST and whether applicant company is liable to pay GST on this amount - Advance Ruling authority had held that applicant, now Appellant, is liable to tax on the amounts billed by him on behalf of the taxi operators for the service provided in the nature of transportation of passengers through it, in accordance with the provisions of sub-section (5) of section 9 of the Central Goods and Services Tax Act 2017 read with Notification No. 17/2017 - Central Tax (Rate) dated 28.06.2017 - Appeal to AAAR.

Held: Service of transportation of passengers is supplied by the taxi drivers using the digital application developed by the appellant - appellant manages the digital application which facilitates the supply of the service of transportation of passengers - appellant owns and operates the IT platform for the supply of service of transportation of passengers over the digital network - customer would book the taxi using the IT platform provided by the appellant and the taxi operator would be intimated about the potential customer through the same IT platform - on completion of service, the appellant sends an invoice to the customer through the digital network facility which is payable by the customer to the taxi driver, therefore, the appellant is an ‘electronic commerce operator' in terms of s.2(45) of the CGST Act - section 9(5) of the CGST Act shifts the liability to pay the tax from the actual supplier of the notified services to the e-commerce operator - electronic commerce operator shall, therefore, be liable to pay tax on the services provided by a motor cab or maxi cab or motor cycle or radio-taxi, by way of transportation of passengers, if such services are supplied through it and it shall be deemed that the electronic commerce operator is the supplier in such cases - Order passed by Advance Ruling authority upheld and the appeal is dismissed: AAAR

- Appeal dismissed: AAAR

SERVICE TAX

2018-TIOL-3737-CESTAT-MUM + Case Story

CCE Vs Consistent Software Technologies India Pvt Ltd

ST - Training in foreign languages is 'vocational training' - entitled for exemption under notification 9/2003-ST - Revenue appeal dismissed: CESTAT [para 4.1, 5]

Appeal dismissed: MUMBAI CESTAT

2018-TIOL-3725-CESTAT-ALL

Logix Soft Tel Pvt Ltd Vs CCE

ST - The assessee was providing services from different locations which included two different types; one related to renting of premises as unit floor renting and said service was being considered by them as falling under 'Business Support Services' and service tax was being paid by them accordingly - The second part of services being provided by them related to providing of furniture and other infrastructure facilities included Wi-Fi facilities - It is admitted fact on record that prior to 01/06/2007, the assessee was discharging service tax liability in respect of one activity i.e. renting of the floor area on unit basis - Thereafter they got themselves registered for all the services under the category of "Renting of Immovable Property" and started paying service tax on the consideration received by them from their customer on account of the said activity of providing furniture & infrastructure activities - If that be so, Tribunal really fail to understand as to how any suppression can be attributed to assessee so as to justifiably invoke the longer period of limitation - The value of both the activities was being reflected in their ST-3 returns from period 01/06/2007 onwards and the service tax was being paid accordingly - This fact leads to inevitable conclusion that Revenue was aware of activities of assessee, at least from 01/06/2007 onwards - Even then SCN stand issued in October, 2011, with allegation of suppression and mis-statement on the assessee - In fact, it is failure of Revenue itself which they are trying to cover by attributing mala fide to the assessee - Inasmuch as the entire facts were known to Revenue, no justification found for invoking the extended period and inasmuch as the entire demand is beyond the normal period of limitation, impugned order is set aside on the said ground itself: CESTAT

- Appeals allowed: ALLAHABAD CESTAT

2018-TIOL-3724-CESTAT-BANG

Trans Asian Shipping Services Pvt Ltd Vs CCE, C & ST

ST - Assessee is engaged in providing various services chargeable to service tax - On verification of records maintained by them, Revenue found that assessee is discharging both taxable and exempted services; they availed CENVAT credit on various input services used by them in providing both taxable and exempted services; utilized the full amount of credit for payment of service tax on taxable services - The Commissioner has not appreciated the evidence put forth by assessee regarding the maintenance of separate accounts - In is on record that in respect of each of the appeals, assessee have produced a CA certificate which certifies the maintenance of accounts by assessee - The assessee have issued guidelines for their internal accounting purposes regarding credit to be availed in respect of services rendered - They are taking the credit on services which are used wholly in taxable services as direct credit and the credit used in exempted services is being written off in the Profit and Loss Account - In case of input services which are used in taxable as well as exempted services, they are making the reversals at the end of the month - It is evident that assessee have maintained separate records as required under CENVAT Credit Rules - They have produced CA certificates before the Commissioner, however, out of above five appeals, only in one case the Commissioner has caused a factual enquiry and has stopped the proceedings - It is not understood as to why such an enquiry was not conducted in respect of other SCNs - Understandably, the assessee a big entity spread over different countries and different places in India as there is no prescribed manner for maintenance of records under CENVAT Credit Rules, the records maintained by assessee have to be accepted as records for the purpose of observing conditions of CENVAT Credit Rules - Moreover, CA has given a categorical certificate that assessee is maintaining separate records and have been making reversals of balance amounts at the end of every month - As held by Supreme Court in case of Chandrapur Magnet Wires Pvt. Ltd. - 2002-TIOL-41-SC-CX, reversal would amount to non-availment of credit - Rajasthan High Court in case of Sanjay Engineering Industries held that subsequent reversal of CENVAT credit amounts to a situation where no credit was taken - Therefore, assessee have maintained separate records and as such, there is force in the arguments made by assessee - However, on going through summary submitted by assessee, there is an amount which remains to be reversed by them - Thus, this amount requires to be reversed along with interest: CESTAT

- Assessee's appeals allowed: BANGALORE CESTAT

2018-TIOL-3723-CESTAT-MAD

Integra Software Services Pvt Ltd Vs CGST & CT

ST - The assessee, a 100% EOU is engaged in service of Information Technology Services, namely, e-publishing of books - For providing such output services, they availed various input services and filed refund claim for unutilized Cenvat credit - They had later filed revised refund claim and the refund sanctioning authority sanctioned the claim - Thereafter, SCN was issued to assessee proposing to deny the credit in respect of certain services pursuant to verification of their ER-2 returns - With regard to Professional Charges, it is submitted by assessee that these charges were paid by them for availing services of Commercial Coaching and Training Services as well as Management Consultancy Services - The credit in respect of Professional Charges is therefore, allowed - The amount of Rs.38,697/- was availed by assessee for Rent-a-Cab Services - The assessee have not furnished any evidence to show that the motor vehicles used for such services are capital goods for the service provider - As per the exclusion clause in definition of "input services", the credit availed for Rent-a-Cab Service is not eligible - The demand in this respect is upheld - The assessee originally availed credit to the tune of Rs.2,34,918/- in respect of local sales and it is argued that they have reversed the credit coming to know that such credit is not eligible - Even though, assessee contend to have reversed such credit, this is not clearly brought out from the records - Said issue requires verification by adjudicating authority - On this very same issue, if the assessee have reversed the credit before issuance of SCN, there shall be no penalties in respect of this issue as per the decision laid in case of M/s. Strategic Engineering Ltd. - Matter is remanded to the adjudicating authority: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

CENTRAL EXCISE

Indian Oil Corporation Ltd Vs CCE

CX - Section 11D of the CEA, 1944 - Appellant, operating under warehousing provisions, stock transfers HSD and Motor Spirit to their depots and from where sale takes place - duty on both products increased on 01.03.2001 and 12.01.2002 - Alleging that the appellant, in respect of the stocks held at their depots, had collected the enhanced CE duties from their customers but not deposited with the Central government, a SCN was issued and demand was confirmed by lower authorities - CESTAT upheld demand, therefore, appeal before High Court.

Held: Arguments of the appellant that they have no control over the Depots is no answer to avoid the demand - actual sale to the customers takes place from depots by adopting the assessable value prevailing from time to time with reference to the rate circular received from their Head Office - Whenever there is upward revision of rates the amount is collected from the customers by the Depots - additional amount recovered has to be considered as extra excise duty, which is liable to be paid under Section 11D of the Act - Admittedly, there is no sale between the terminal and depots - it is the responsibility of the consignor to produce the sale record on stock transfer of goods and pay the excess amount of excise duty collected due to upward revision of rates - Impugned order upheld and Appeal dismissed: High Court [para 23 to 28, 30]

- Appeal dismissed: MADRAS HIGH COURT

2018-TIOL-3728-CESTAT-ALL

Jubilant Life Sciences Ltd Vs CCE

CX - Appeal filed against impugned order in terms of which Cenvat credit has been confirmed alongwith interest and mandatory equal penalty - Period involved is 01.04.2007 to 31.10.2011 - An amount of Rs.5,16,704/- out of the impugned Cenvat credit relates to Cenvat credit in respect of services used for effluent handling outside the factory - Such credit has been held to be admissible as per Order in case of Lupin Limited - 2012-TIOL-2099-CESTAT-MUM, Chemplast Sanmar Ltd. - 2011-TIOL-852-CESTAT-MAD and Deepak Fertilizers and Petrochemical Corporation Ltd. - 2013-TIOL-212-HC-MUM-CX - Accordingly, admissibility of said credit is upheld - An amount of Rs.51,36,450/- pertains to disallowing Cenvat credit on paints used for repair and maintenance of pipelines of factory - Such credit has been held to be admissible vide judgement in case of DSM Sugar as also in case of Dhampur Sugar Mills Ltd. - Further, in case of Samtel Color Ltd. - 2013-TIOL-370-HC-ALL-CX, the Cenvatability of the same was upheld by following the said decisions - Issue held in favour of assessee - The remaining amount of Rs.17,06,297/- pertains to Cenvat credit taken of duty paid on diluted Acetic Acid which they used for recovery of Acetic Acid which is further used in their process of manufacture - Assessee have submitted proper invoices showing payment of duty and they are in no position to question the assessment at the end of suppliers - It is also stated that the said product is an input for assessee - Therefore, impugned credit on diluted Acetic Acid is admissible to them - Inasmuch as appeal stands allowed on merits, plea of limitation is not being adverted to: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2018-TIOL-3727-CESTAT-MAD

Madras Cements Ltd Vs CGST & CE

CX - The assessee is manufacturer of cement and was availing CENVAT Credit for various inputs, input services and capital goods used in or in relation to manufacture of cement - They entered into an agreement with M/s. CECL for the civil construction work relating to clinker silos and were required to supply various iron and steel raw materials and cement for erection of the same - A SCN was issued proposing to recover the CENVAT Credit relating to iron and steel raw materials and cement given to M/s. CECL for execution of civil contract relating to clinker silos project - The issue is squarely covered by various recent decisions including the decisions of this Bench of CESTAT in assessee's own case and also in case of M/s. Chettinadu Cement Corporation Ltd., wherein the Tribunal has after considering the rival contentions, remanded the matter to the adjudicating authority for de novo consideration - Apart from that, assessee also placed reliance on the various judicial fora, including the judgement of jurisdictional High Court in case of M/s. Thiru Arooran Sugars - 2017-TIOL-1357-HC-MAD-CX which is binding and is required to be followed - Following the ratio laid down in said cases, matter remanded to the file of adjudicating authority for de novo consideration in the light of direction in case of M/s. Chettinadu Cement Corporation Ltd. - Hence, the impugned Order is set aside and the matter is remanded to the adjudicating authority - The penalties imposed are also set aside: CESTAT

- Matter remanded: CHENNAI CESTAT

2018-TIOL-3726-CESTAT-DEL

Hindalco Industries Ltd Vs CCE & ST

CX - The assessee acquired a piece of land in a remote village after paying appropriate compensation for acquisition of land and after construction of rehabilitation & resettlement (RR) colony, for setting up its ‘Mahan Aluminum Smelter plan’ at Bargawan, M.P - Such RR colony was set up by assessee as part of its Corporate Social Responsibility (CSR) - Since the plant of assessee was located in a remote area where proper rental accommodation was not available, the assessee also constructed the colony, as a secured accommodation facility to its employees, to run the plant round the clock - They availed certain services in setting up their plant/ factory which commenced in 2008-2009, registration was obtained in June 2009 and Cenvat credit on various input services was availed - Commercial production only began in May 2013, but service received for setting up the plant began in 2009 - The Department initiated enquiry against assessee by forming a viewpoint that assessee has availed inadmissible Cenvat Credit on various inputs services - Upon insistence by Department, assessee reversed the entire credit, despite having eligibility for such credit - Thereafter Revenue further demanded interest on the amounts already reversed by assessee - There is no allegation of fraud, suppression or falsification of records - The issue is simply of interpretation - Under these facts and circumstances and the admitted position, the invocation of extended period of limitation is bad and the SCN is not maintainable on this ground - Accordingly appeal allowed on the issue of limitation - The impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT