2020-TIOL-2265-HC-DEL-GST
Raghav Agarwal Vs CCT & GST
GST - Applicant was arrested by an Arrest Memo dated 18.11.2020 - Respondent had issued a letter dated 11.06.2020 alleging that M/s Dreamz International had availed of fraudulent/inadmissible ITC amounting to Rs.2,60,44,887/- and the applicant was requested to deposit the said amount in DRC-03 challans and submit the same via e-mail - Counsel appearing for the respondent states that the said figure has now swelled to Rs.10,84,00,000/- - It is also conceded that no show cause notice has been issued to the applicant as yet and no proceedings for assessing the exact amount has been initiated.
Held: Matter is listed for hearing on 19.01.2021 - In the meanwhile, the applicant is directed to be released on interim bail on his furnishing a Personal Bond in the sum of Rs.1 lakh with two sureties of the like amount to the satisfaction of the trial court/duty magistrate and subject to further conditions as detailed: High Court
- Interim bail granted : DELHI HIGH COURT
2020-TIOL-304-AAR-GST
Alfa Granites
GST - Applicant had sought a ruling from the Authority and had also attended the hearing scheduled on 15.10.2020 - However, vide their letter dated 23.11.2020 they requested the Authority to permit them to withdraw their application for advance ruling quoting the reason that certain clauses of the MOU have been amended due to the ill-effect of COVID-19 and consequential slowdown of business.
Held: Application filed is disposed of as withdrawn: AAR
- Application disposed of: AAR
2020-TIOL-303-AAR-GST
Dheeraj Enterprises
GST - Applicant seeks correct classification of licensing services for the right to broadcast and show original films, sound recordings, Radio & Television programmes etc. - Application filed on 22.09.2020.
Held: It is clearly evident from the records that the issue of classification of the services provided by the applicant was under investigation as evident from DRC-01A dated 10.09.2020 - Said form GST DRC-01A is a prescribed one in terms of rule 142(1A) of the CGST Rules, 2017 and contains a reference of the case proceedings which clearly indicates that proceedings have been initiated and are not concluded and which proves that the case proceedings are pending - Issue raised in the instant application and the issue pending under the proceedings are one and the same i.e. classification of the services provided by the applicant - Thus the first proviso to s.98(2) of the Act, 2017 is squarely applicable to the instant case as all the conditions therein are fulfilled - Application is, therefore, rejected as ‘inadmissible' in terms of first proviso to s.98(2) of the CGST Act, 2017: AAR
- Application rejected: AAR
2020-TIOL-302-AAR-GST
Dempo Diary Industries Ltd
GST - Applicant has sought an advance ruling in respect of the classification of the product ‘Flavoured Milk; whether under HSN 0402 9990 or under 2202 9930 - It is an undisputed fact that the applicant supplies the impugned product under the brand name 'Nandini' which is owned by M/s KMF against who an offence case is pending before DGGI, Bangalore - Applicant has admitted that M/s KMF holds 90% shares and hence have management/administrative control over the applicant - M/s KMF are the owners of 'Nandini' brand against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk - Thus it is very clear that the applicant, being the job worker to M/s KMF becomes part of M/s KMF as they also supply the same product of ‘Flavoured Milk' and hence is bound to oblige the conclusion of the proceedings in this regard - Hence, the pendency of proceedings automatically applies to the present applicant also - Instant application is liable for rejection in terms of first proviso to s.98(2) of the CGST Act, 2017: AAR
- Application rejected: AAR
2020-TIOL-301-AAR-GST
Bengaluru Co-Operative Milk Union Ltd
GST - Applicant has sought an advance ruling in respect of the classification of the product ‘Flavoured Milk; and the rate of GST thereon - It is an undisputed fact that the applicant supplies the impugned product under the brand name 'Nandini' which is owned by M/s KMF against who an offence case is pending before DGGI, Bangalore - Applicant has admitted that they are one of the shareholders of M/s KMF, who are the owners of Nandini brand and against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk - Applicant being the shareholder in M/s KMF becomes part of M/s KMF as they also supply the product ‘flavoured milk' under the 'Nandini' brand and hence is bound to oblige the conclusion of the proceedings in this regard - Hence, the pendency of proceedings automatically applies to the present applicant also - Instant application is liable for rejection in terms of first proviso to s.98(2) of the CGST Act, 2017: AAR
- Application rejected: AAR
2020-TIOL-300-AAR-GST
Age Industries Ltd (Dated: December 15, 2020)
GST - A pplicant is engaged in manufacture, distribution and marketing of Knitted and Woven Garments under the brand name of "Jockey", Swim-wears and Swimming Equipment's under the brand name of "SPEEDO" - The applicant also gets the said garments manufactured from their job workers - Applicant had sought advance ruling on the following - "Whether in the facts and circumstances of the case, the promotional products / Materials and Marketing Items used by the Applicant in promoting their brand and marketing their products can be considered as "inputs" as defined under section 2(59) of the CGST Act, 2017 and GST paid on the same can be availed as input tax credit in terms of section 16 of the CGST Act, 2017?"
Held:
+ What is the treatment to be given to those materials which are delivered to the distributors, franchisees and retailers but the ownership lies with the applicant, but the same are used in their premises ("non-distributable goods") & those which are delivered free of cost to the distributors, franchisees and retailers to be distributed to their employees and customers ("distributable goods");
+ Applicant uses these goods till the goods are usable for the promotion of his business and claim the depreciation on the same. The applicant is capitalizing these goods and on the day of their disposal, the said goods are destroyed.
+ Since the applicant is retaining the ownership on these materials and are not a direct cost of the products sold, they can be treated as "capital goods" and hence needs to be capitalized in his books of accounts. Hence they cannot be treated as "input" as the term excludes capital goods.
+ Taxes paid by the applicant on the supply of goods or services, or both, qualify as input tax credit.
+ Since the applicant has used or intended to use the goods and services procured in the course or furtherance of business, the applicant is entitled to take input tax credit, subject to other provisions of the Act and there is no blockage attributable to section 17(1) as the applicant has used the goods in the course or furtherance of business.
+ The "non-distributable" goods are used by the applicant for the purpose of their business and at the time of such writing off or loss or destruction, the input tax credit claimed on such goods are to be reversed. The applicant has not made any submissions regarding what is ultimately done to these goods after the end of period of usage. Assuming that they are written off or destroyed or lost, the input tax credit claimed under section 16 needs to be reversed as per Rule 43 of the CGST Rules, 2017.
+ Regarding the "distributable goods", they are procured by the applicant and used for sales promotion. They are given free of cost and there is no consideration for such transfer. The stock register of the applicant would be credited with these materials when they are procured and debited when they are distributed and hence they would be no longer in the accounts of the applicant. Since this transfer is not for consideration, the next step is to examine if the transaction is falling under the First Schedule of CGST Act, 2017.
+ With regard to the first category i.e. the Franchisees of the applicant are associated in the business of one another and hence are related persons. It is an admitted fact that the applicant disposes the distributable goods by way of gifts and free supplies to promote business and hence are to be treated as supplies in terms of para 2 of Schedule I to the CGST Act 2017. Thus the applicant need to discharge applicable GST on such supplies and thereby is entitled to avail input tax credit on the said supply of goods.
+ The second category is that of all brands stores and they do not fall under the related persons. Further, the Circular No. 92/11/2019-GST dated 07.03.2019 also addresses applicant's contention that items supplied for promotion of the brand is as per contractual obligation & hence can't be called as gifts. The Circular makes it abundantly clear that these items would be called "gifts". Hence in this case, since the persons to whom the "distributable goods" are given are not related parties and are distinct persons and are not employees of the applicant, the transaction is not coming under the scope of "supply" and hence the applicant is not eligible to claim input tax credit on the same.
Conclusion:
1. The ITC of GST paid on the procurement of the "distributable" products which are distributed to the distributors, franchisees is allowed as the said distribution amounts to "supply" to the related parties which is exigible to GST - Further, the said distribution to the retailers for their use cannot be claimed as gifts to the retailers or to their customers free of cost and hence ITC of GST paid on such procurement is not allowed as per Section 17 (5) of the GST Acts.
2. The GST paid on the procurement of "non-distributable" products qualify as "capital goods" and not as "inputs" and the applicant is eligible to claim input tax credit on their procurement, but in case they are disposed by writing off or destruction or lost, then the same needs to be reversed under Section 16 of the CGST Act, 2017 read with Rule 43 of the CGST Rules, 2017.
- Application disposed of: AAR
2020-TIOL-89-NAA-GST
Director General Of Anti-Profiteering Vs Lifestyle International Pvt Ltd
GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Authority vide order no. 08/2018 [ 2018-TIOL-7-NAA-GST ] had held that the Respondent had enhanced the basic price of the product "Maybelline FIT Me foundation”, which was exactly equal to the amount by which the GST on them had been reduced [ from 28% to 18% vide Notification No. 41/2017 -Central Tax (Rate) dated 14.11.2017, with effect from 15.11.2017 ] and hence there is no doubt that the Respondent had resorted to profiteering amounting to Rs. 15,861/- (in total) which includes profiteering of Rs. 41/- made by him from the Applicant, which constitutes violation of the provisions of Section 171 of the above Act - Accordingly, the Authority had issued notice dated 01.10.2018 to the Respondent to Show cause as to why they were not liable for imposition of penalty under the provisions of s.122 of the Act, 2017 read with Rule 133(3)(d) of the Rules, 2017 - Respondent vide his submissions dt. 24.10.2018 and 19.12.2018 stated that the penalty provisions u/s 122 r/w rule 133(3)(d) should not be invoked and penalty should not be imposed as he had cooperated fully with the DGAP and always acted in a bonafide manner and passed on the benefit of reduced GST; that penalty can be imposed only when there was mens rea and deliberate attempt to violate the provisions of law.
Held: It is revealed that no penalty had been prescribed for violation of the provisions of s.171(1) of the Act and, therefore, the respondent was issued a SCN to state why penalty should not be imposed on him for violation of the above provisions as per s.122(1)(i) of the Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers - However, from the perusal of s.122(1)(i) of the Act it is clear that the violation of provisions of s.171(1) was not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under s.171 of the Act - It is further revealed that vide s.112 of the Finance Act, 2019, specific penalty provisions have been added for violation of the provisions of s.171(1) which have come into force w.e.f 01.01.2020 by inserting s.171(3A) of the Act - Since no penalty provisions were in existence between the period 15.11.2017 to 31.01.2018 when the respondent had violated the provisions of s.171(1) of the Act, the penalty prescribed under sec.171(3A) cannot be imposed on the respondent retrospectively - Accordingly, the notice dated 01.10.2018 issued to the respondent for imposition of penalty u/s 122(1)(i) is hereby withdrawn and present penalty proceedings are dropped: NAA
- Proceedings dropped: NAA
2020-TIOL-73-NAA-GST
Director-General Of Anti-Profiteering Vs Sudharshan
GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant alleges profiteering by the respondent in respect of the supply of Services by way of admission to exhibition of cinematograph films where price of admission ticket is one hundred rupees or less when GST was reduced from 18% to 12% w.e.f 01.01.2019 vide notification 27/2018-CTR - DGAP has reported that the respondent had not passed on the benefit of reduction in the GST rate on the aforesaid movie admission tickets and instead increased the base prices to maintain the same cum-tax selling prices - DGAP has in its report stated that the amount of alleged profiteering covering the period from 01.01.2019 to 30.06.2019 was Rs.2,23,850/- and the recipient of the services were not identifiable as no such details of the customers had been provided.
Held: Respondent has neither submitted the order showing fixation of prices by the State government nor has he submitted any documentary evidence/agreement to evidence that the price was fixed by the film producers/distributors and hence their contention that he has no right to fix the prices of the tickets cannot be accepted - Authority agrees with the report of the DGAP that the respondent has realised an additional amount to the tune of Rs.2,23,850/- from the recipients which included both the profiteered amount and the GST on the said profiteered amount - The respondent is, therefore, directed to reduce the prices of his tickets as per the provisions of rule 133(3)(a) of the Rules, 2017 keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients - Respondent is also directed to deposit the profiteered amount of Rs.2,23,850/- along with interest to be calculated @18% from the date when the above amount was collected by him from the recipients till the said amount is deposited - As the recipients are not identifiable, the respondent is directed to deposit the amount equally between the Central Consumer Welfare Fund and the State Consumer Welfare Fund as per rule 133(3)(c) of the Rules, 2017 along with interest @18% - Above amount is to be deposited within a period of three months and compliance reported - DGAP to submit compliance report - In view of the pandemic and the notification 65/2020-CT issued in this regard, order is passed accordingly: NAA
- Application disposed of: NAA
2020-TIOL-71-AAAR-GST
Tirumala Milk Products Pvt Ltd
GST - AAR had held that the f irst proviso to Section 98(2) of the CGST Act, 2017 does not specify as to with whom the issue pertaining to the question raised (before the AAR) has to be pending, but merely specifies that it has to be pending or decided under the provisions of this Act; that, therefore, the argument of the applicant that the issue must be pending before the jurisdictional officer is not tenable under the law; that in the instant case, the Deputy Commissioner, Office of the Principal Commissioner of Central Tax, Bangalore East Commissionerate, Bangalore has reported vide letter dated 18.08.2020 that the Directorate of GST Intelligence, Bangalore Zonal Unit has initiated the investigation against the applicant, with regard to mis-classification of "flavoured milk", under Incident Report No.35/2019-20, which is under progress; that it is an admitted fact that the initiation of investigation was done prior to filing of the instant application by issuing summons dated 18.02.2019, 15.03.2019 & 14.08.2019 and hence the application is liable to be treated as inadmissible - AAR had, therefore, rejected the application as "inadmissible" in terms of first proviso to Section 98(2) of the CGST Act 2017 - Aggrieved, the appellant is before the AAAR - Appellant contends that mere issuance of summons to them cannot be called as 'proceedings under the Act'; that it is only when a SCN has been issued can it be said that proceedings are pending; that even assuming for the sake of argument that the proviso is applicable, there is nothing to prove that the question raised in the application [whether flavoured milk is taxable @5% under Schedule IV of the Act] was the subject matter being investigated; that none of the three summons issued had any mention that the classification of Flavoured milk or its rate of tax was being investigated by the authorities.
Held: As per section 95(a) of the Act, "Advance ruling" means a decision provided by the Authority or the Appellate Authority to an applicant on matters or questions specified in sub-section (2) of section 97 of sub-section (1) of s.100 in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant - An advance ruling pronounced by the Authority u/s 98(4) may be appealed against to the Appellate Authority within a period of 30 days/further period not exceeding thirty days - A reading of the above provisions makes it clear that an appeal can be filed before the Appellate authority ONLY against an advance ruling pronounced in terms of s.98(4) of the act - In this case, there is no ruling given by the lower Authority on the question raised in the application - Such an order rejecting the application for advance ruling as 'inadmissible' is not an order appealable before the Appellate Authority - Appellate Authority, therefore, agrees with the decision taken by the lower Authority that the application for advance ruling is inadmissible in terms of the proviso to s.98(2) of the CGST Act, 2017 - Appeal filed is, therefore, not maintainable inasmuch as the impugned order is not an appealable order u/s 100 of the CGST Act, 2017 - Since the appeal itself is not maintainable, the question of condoning the delay in filing the appeal does not arise - Appeal dismissed as not maintainable: AAAR
-Appeal dismissed : APPELLATE AUTHORITY FOR ADVANCE RULING |