GST - Orders passed by Appellate Authority for Advance Ruling imposing GST in respect of 'mango pulp' @ 18% is incorrect and petitioner is liable to pay GST in respect of Mango pulp @ 12%: HC

GST - Issue of charging of GST at wrong rate does not fall under the scope of s.171, therefore, jurisdictional CGST/SGST Commissioner is advised to take necessary action: NAA

GST - Project JKG Palm Court (Greater Noida) - Non-passing of ITC benefit - Profiteered amount of Rs.5.14 Crores to be passed on to Home buyers/shop buyers/customers along with interest: NAA

CX - In absence of corroborative evidence, issue in instant case i.e. 'the charge of clandestine clearance' cannot be labeled against appellant: CESTAT

2022-TIOL-1440-HC-AP-GST

Foods And Inns Ltd Vs UoI

GST - The question that arises for consideration is, whether the authorities were right in charging GST in respect of 'Mango Pulp', @ 18% - On an application made by petitioner before Authority For Advance Ruling, an order came to be passed wherein it was held that 'Mango pulp/puree' falls under entry no.453 of Schedule-III of Notfn 1/2017-Central Tax (Rate) , attracting GST @ 18% - On the basis of recommendation of GST Council in its 22nd meeting, GST rate on 'Mangoes sliced, dried' falling under heading 0804 was reduced from 12% to 5% while GST rate on all forms of dried mangoes (other than sliced and dried mangoes) falling under heading 0804, including mango pulp, was always meant to be at the rate of 12% - Therefore, petitioner is liable to pay GST on Mango pulp @ 12% - Orders passed by Appellate Authority for Advance Ruling imposing GST in respect of 'mango pulp' @ 18% is incorrect and it is made clear that petitioner is liable to pay GST in respect of Mango pulp @ 12%: HC

- Writ Petition disposed of: ANDHRA PRADESH HIGH COURT

2022-TIOL-1439-HC-MAD-GST

Darshan Comtrade Pvt Ltd Vs Pr.CCGST & CE

GST - The prayer of petitioner is against impugned order, which is passed in Form GST DRC-22 attaching the current account of petitioner in ICICI Bank - The attachment as per Section 83(2) of Central Goods and Service Tax Act, 2017 shall cease to have effect after a period of one year from date of order of attachment - Thus, pending writ petition, the impugned order has ceased to have effect, as on 15.09.2020 - With this, petition has been rendered infructuous - There is no further embargo on operation of bank account and on petitioner resuming operations in that regard: HC

- Writ petition disposed of: MADRAS HIGH COURT

2022-TIOL-80-NAA-GST

JKG Construction Pvt Ltd

GST - Anti-profiteering - s.171 of the Act, 2017 - Allegation is profiteering by the Respondent in respect of the purchase of shops in the Respondent's project "JKG Palm Court" by not passing on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in prices after implementation of GST w.e.f. 01.07.2017.

Held: It is observed from the DGAP Report that the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April 2016 to June 2017) was 0.80%, whereas, during the GST period (July 2017 to October 2020), it was 7.78% for the project 'JKG Palm Court' - This confirms that during the GST period, the Respondent has benefited from additional ITC to the tune of 6.98% (7.78% - 0.80%) of his turnover for the project JKG Palm Court' and the same was required to be passed on to the customers/flat buyers/recipients - The DGAP has calculated the total profiteered amount as Rs. 5,14,06,920/-in respect of the homebuyers/shop buyers/customers/recipients of supply in the impugned Project including the Applicant No. 1 - The Respondent claim of passing on the benefit amounting to Rs. 6,15,24,106/- cannot be accepted in absence of any documentary evidence or corroborative documents - This claim of Respondent also need to be rejected in view of the Applicant No. 1 submission that no benefit has been passed on to her by the Respondent - Authority also orders that the profiteered amount of Rs. 5,14,06,920/- for the project 'JKG Palm Court' along with the interest @ 18% from the date of receiving the profiteered amount from the homebuyer/customers/recipients of supply till the date of passing the benefit of ITC shall be paid/passed on by the Respondent within a period of 3 months from the date of this order failing which it shall be recovered as per the provisions of the CGST Act, 2017 - Respondent is liable for the imposition of penalty for the period from 01.01.2020 onwards under the provisions of the said Section 171 and Accordingly, a Notice is to be issued to the Respondent - An advertisement of appropriate size to be visible to the public at large may also be published in a minimum of two local newspapers/ vernacular press in Hindi/English/local language with the details i.e., Name of the Builder (Respondent) - M/s JKG Constructions Pvt. Ltd., B-174, 1st Floor, Yojna Vihar , New Delhi-110092, Project- "JKG Palm Court" (Greater Noida) and amount of profiteering Rs.5,14,06,920/- so that the concerned home buyers/shop buyers/customers/recipients of supply can claim the benefit of ITC if not passed on. Home buyers/shop buyers/customers/recipients of supply may also be informed that the detailed NAA Order is available on Authority's website www.naa.gov.in Contact details of concerned Jurisdictional CGST/SGST who are nodal officers for compliance of the NAA's order may also be advertised through the said advertisement - Compliance reported to be submitted within a period of 4 months - Present investigation has been conducted up to 31.10.2020 only, therefore, jurisdictional authorities are directed to ensure that the ITC benefit is passed on for the subsequent period also - As the authority has reasons to believe that the Respondent may have resorted to profiteering in the other projects also, it directs the DGAP under Rule 133(5) to investigate all the other projects of the Respondent: NAA

- Application disposed of: NAPA

2022-TIOL-78-NAA-GST

Madhya Pradesh Housing And Infrastructure Development Board

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - An application was filed by the Applicant No. 1 under Rule 128 of the Rules, alleging that he purchased an EWS House in the Project at Kamayani Nagar at Rau, Indore from the Respondent in May, 2019 and the Respondent charged GST @ 12% from him instead of 1%.

Held: It has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April, 2016 to June, 2017) was 0% and during the post-GST period (July, 2017 to November, 2020), it was 5.92% for the Project at Kamayani Nagar at Rau, Indore - This confirms that post-GST, the Respondent has benefited from additional ITC to the time of 5.92% [5.92% (-) 0%] of his turnover for the said Project, and the same was required to be passed on to the customers/flat buyers/recipients - The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers/customers/recipients as Rs. 26,33,536/- for the Project of the Respondent at Kamayani Nagar at Rau, Indore - Authority also orders that the profiteered amount of Rs. 26,33,536/- for the Project at Kamayani Nagar at Rau. Indore along with the interest @ 18% from the date of receiving of the profiteered amount from the home buyers/customers/recipients till the date of passing the benefit of ITC shall be paid/passed on by the Respondent within a period of 3 months - As the period of investigation was 01.07.2017 to 30.11.2020, therefore, the Respondent is liable for imposition of penalty under the provisions of Section 171(3A) for the amount profiteered from 01.01.2020 onwards and notice is to be issued accordingly - An advertisement of appropriate size to be visible to the public may also be published in a minimum of two local Newspapers/vernacular press in Hindi/English/local language with the details i.e. Name of the builder (Respondent) - M/s Madhya Pradesh Housing and Infrastructure Development Board, Project at Kamayani Nagar, Rau, Location- In (lore, Madhya Pradesh and amount of profiteering i.e. Rs. 26,33,536/- so that the concerned home buyers/customers/recipients can claim the benefit of ITC if not passed on. Homebuyers/customers/recipients may also be informed that the detailed NAA Order is available on Authority's website www.naa.gov.in - Compliance report to be submitted by jurisdictional authorities within a period of four months - Insofar as the allegation made by the applicant it appears that the Respondent has charged GST at the wrong GST rate from the Applicant No. 1 and other homebuyers of EWS Houses - However, as the issue of charging of GST at wrong rate does not fall under the scope of Section 171 of the CGST Act, 2017 , the jurisdictional CGST/SGST Commissioner concerned is advised to take necessary action in this matter, as deemed fit - DGAP is also directed under Rule 133(5) to investigate all the other projects of the Respondent under the same GST registration which have not yet been investigated from the perspective of Section 171 of the CGST Act, 2017 and submit complete investigation report for all the Projects under this single GST Registration: NAA

- Application disposed of: NAPA

2022-TIOL-1061-CESTAT-KOL

Maa Foundry Pvt Ltd Vs CCE & ST

CX - SCN was issued on the basis of two private records i.e. Note Book and Ledger purportedly seized during search and purported shortages of C.I. Moulds - On comparison of entries in said private records with Excise Invoice, it was purportedly noticed that some of the entries did not have corresponding Excise Invoices and on that basis it was alleged that appellant had purportedly clandestinely produced and removed C.I. Moulds without payment of duty - Entire case is based on private records seized from residence of employee Shri Anirudha Sutar and office of appellant - Private records relied upon by Revenue cannot be a basis to uphold the serious charge of clandestine clearance - It is settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on Revenue by adducing concrete and cogent evidence - In absence of corroborative evidence, issue in instant case i.e. "the charge of clandestine clearance" cannot be labeled against appellant - Confirmation of demand on the basis of purported shortage of C.I. Mould purportedly detected in physical actual weighing of entire stock is not proper - In impugned Order, the Addl. Commissioner has accepted that stock taking was not done by actual weighment but on visual inspection - Dispute relates to period whereas SCN is issued beyond the normal period of limitation of one year under Section 11A(1)/11A(4), hence entire demand is barred by normal period of one year - Allegation of clandestine manufacture and removal of finished goods by appellant made in SCN, is merely on assumption and presumption, without sufficient material evidence corroborating said allegations - Therefore, impugned order is set aside - Penalty imposed under Rule 26 of Central Excise Rules, 2002 on Shri Pitabhas Chhotray, Director of Appellant Company is also set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT