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GST - Case Laws
Showing 1 to 20 of 1711 Records
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2019 (12) TMI 1676
Scope of Section 17(5)(d) - construction of immovable property (shopping malls) intending for letting out for rent - input tax credit from construction against output GST on rental income - High Court held that assessee is required to pay GST on the rental income arising out of the investment on which he has paid GST, it is required to have the input credit on the GST, which is required to pay u/s 17(5)(d) of the CGST Act - HELD THAT:- The learned senior counsel appearing for the petitioners prays for time to file reply.
List after four weeks. Additional documents, if any, may also be filed by the parties in the meantime.
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2019 (12) TMI 1665
Requirement of pre-deposit on filing appeal - quantum of pre-deposit - petitioner points out that while filing First Appeal, the petitioner had deposited 10% of the disputed tax liability as provided under subsection (6) of Section 107 of the Act - it is submitted that the petitioner is ready and willing to deposit 20% of the remaining amount of tax in dispute - HELD THAT:- The petitioner is permitted to deposit 20% of the remaining amount of tax in dispute and as soon as the said amount is deposited, the recovery proceedings for the balance amount shall remain stayed as provided under subsection (9) of Section 112 of the Act.
List in the third week of January, 2020.
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2019 (12) TMI 1619
Profiteering - HELD THAT:- Learned counsel for the Respondents has tendered in Court the report prepared by the Directorate General of Anti-Profiteering dated 25.02.2019 which forms the basis of the impugned order. Unfortunately, the same has not been filed by the Petitioner which should actually have been filed by the Petitioner along with the petition. Subject to the Petitioner depositing the amount of Rs. 5,06,78,069/- with the Respondents within four weeks, the impugned order shall remain stayed.
The amount, if deposited, shall be put in a fixed deposit for a period of one year. The disbursement of the amount deposited shall abide by any further orders that may be passed in the petition.
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2019 (12) TMI 1577
Classification of goods - rate of duty - outward supply of flavoured milk - whether 'flavoured milk' is classifiable under tariff item 2202 9930 of the First Schedule to the Customs Tariff Act, 1975 as a “beverage containing milk” with the rate of tax as 12% GST as per the ruling of AAR or it is classifiable under HSN 0402 9990 with the rate of tax as 5% under Notification No.1/2017 - Central Tax (Rate) as per the contention of the appellant? - Whether 'flavoured milk' can be considered a beverage containing milk? - N/N. 3/2005-C.E.
HELD THAT:- In common parlance, a beverage is “(chiefly in commercial use) a drink other than water. It is a liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed”. The instant product, the flavoured milk is undoubtedly a beverage containing milk. It is moreover, a 'preparation' made as per the description given by the appellant in the flow chart submitted by him - even though the product in question is a dairy produce and also an edible product of animal origin, the qualifier that it is “not elsewhere specified or included” makes it ineligible to be classified under the chapter 4. The product in dispute as it is already specified and included under chapter 22 dealing with goods /items of “Beverages, spirits and vinegar” makes it ineligible to be classified under chapter 4.
Thus, the commodity 'flavoured milk' merits classification under beverage containing milk under tariff heading 2202 90 30. The rate of tax applicable for the said tariff item is 12% GST under entry no. 50 of Schedule II of Notification No.1/2017 - Central (Rate) dated 28.06.2017 as amended - the Ruling of the AAR is in tune with legal position and it needs no interference and the appeal is accordingly dismissed.
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2019 (12) TMI 1574
Classification of supply - naturally bundled services or not - composite supply of principal activity of supply of electrical energy or not - activities enlisted by the appellant in the queries such as connection, re-connection, supervision of the works, erection of poles, sub-stations, transmission lines and supply of meters etc., to the consumers for the purpose and during the course of supply of electricity to them - services can be treated as part of principal supply of "transmission or distribution of electricity", which is exempted or not - supplies made to the consumers through contractors and third parties for the purpose of transmission or distribution of electricity or sale of electrical energy - HELD THAT:- From Circular No. 34/8/2018-GST, it is clear that the services numbered from (i) to (iv) as provided by DISCOMS to consumer are taxable. It is to be noted that the supply of electricity is a continuous supply whereas the ancillary services provided by the appellant are made at the specific request of the consumer. It is the same principle that guides in the determination of the question whether the ancillary activities form part of the composite supply or not.
On perusal of definition of composite supply, it is clear that the ancillary activities of the appellant such as connection, re-connection, supervision of the works, erection of poles, sub-stations, transmission lines etc., and supply of meters etc., are not naturally bundled with supply of electricity rather they are supplied by and charged for by the appellant only if demanded or consumed by the customers. Thus, the exemption notified for 'transmission and distribution of electricity' cannot be extended to it's ancillary supplies on the pretext of they being a part of composite supply, which is far from true; and they are taxable irrespective of the fact that whether they are supplied by contractors or third parties.
Whether the works executed under Deendayal Upadhyay Gram Jyoti Yojna for Rural Electrification ('DDUGJY'), Integrated Power Development Scheme (IPDS) and Restructured Accelerated Power Development and Reforms Program supplies made through contractors are liable to 12% GST since they are executed under grants provided by central government and no commercial activity is involved with regards these works? - Whether the execution of the Agricultural Demand Side Management Scheme (AGL) works are liable to 12% GST since they are executed for non-commercial purposes? - HELD THAT:- It is a settled issue between the appellant and the lower authority that APSPDCL is a Government entity vide Notification No.31/2017 Central Tax (Rate) dt. 13.10.2017. But the issue to be determined is whether the concessional rate of tax is applicable to the appellant - the formation of the appellant company itself is made with an objective of being self-reliant commercially and all the programmes of Deendayal Upadhyay Gram Jyoti Yojna for Rural Electrification ('DDUGJY'), Integrated Power Development Scheme ('IPDS') and Restructured Accelerated Power Development and Reforms Program and the execution of the Agricultural Demand Side Management Scheme (AGL) works taken up by the appellant through the contractors, even though funded by the Central Government with grants of 60% or by the State Government with REC loan funding, have the main objective of making the organization as commercially viable. It clarifies that the works referred by APSPDCL are for commercial purpose and the benefit of concessional rate of 12% as per the Notification No. 24/2017- Central Tax (Rate) dt.21.09.2017 is not applicable to the appellant.
Whether the supply of services and goods made by the appellant through contractors by way of construction, erection, commissioning, or installation of infrastructure for extending electricity distribution network up to the tube well of the farmer or agriculturist for agricultural use are exempted vide Notification No.14/2018- Central Tax (Rate) dated 26.07.2018? - HELD THAT:- The plain reading of the Heading 9954 clarifies that the exemption is applicable only to the 'electricity distribution utilities' i.e., the appellant alone and it being a exemption notification cannot be interpreted or extended to the contractors who carry out the above mentioned works on behalf of the appellant and therefore the works taken up by contractors are exigible to tax. We concur with the decision of the lower authority in this regard.
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2019 (12) TMI 1573
Classification of goods - applicable rate of GST - Anaerobic Microbial Inoculurns (AMI) - to be classified under chapter sub-heading 31010099 of the heading 3101 of the GST Tariff or not - HELD THAT:- Though the authorized representatives of the party had contended that the alternate use of AMI was as organic manure, the website of the party viz. www.elefobiotech.com, does not show organic manure as one of its manufactured products. The said website, while describing AMI, states inter alia- “AMI are bacterial consortium which converts fecal matter into gases and water.” From the same site also states inter alia- “During the Bio-degradation of the faecal matter, CO2, Methane and water are generated along with very little sludge.” The capability of AMI to bio-degrade faecal matter is the reason why AMI is used in Bio digester toilets by Indian Railways. The whole process is eco-friendly and waste is broken down into gases and water. The remaining sludge is minimum quantity which may or may not be used as organic manure. The contention put during the time of hearing that the dung with AMI can be used as fertiliser appears to be a weak attempt to justify their claim of the product as fertilizer. The dung is used as the base for the culture of AMI and this AMI growth in no way adds to the fertilizing property of dung. Moreover, the company is manufacturing and selling AMI for bio degrading human waste and not AMI infused dung as fertilizer. Thus, it is not the AMI which is organic manure but at the most the products resulting out of its actions which can be put into use as manure, though that too has not been claimed.
Though the Ld AAR has discussed the nature of AMI in their ruling quite elaborately, but appear to have failed to understand the issue in the proper perspective. Obviously, the contention of the authorized representatives is wrong and the inference drawn by the Ld. AAR on the issue is also completely inaccurate and misconceived. Therefore, by no stretch of imagination can AMI be considered as organic manure and hence it cannot be classified under HSN 3101.
In the present case, on a detailed scrutiny of the details of AMI as submitted by the party as well as the description given on their website and other relevant information, it is found that the product 'AMI' are not any product of living cell or organism,' rather they are themselves culture/colonies of bacteria put in the medium of dung. They are also not acting as a catalyst in the strict sense rather they digest the waste products releasing water and gases as by products. Therefore. 'AMI' cannot be classified under the heading of 'Enzyme' as contended in the appeal filed by the CGST officer. During the hearing the party's representative Shri Bathla also stated that their product may get covered as live bacteria.
Anaerobic Microbial lnoculum (AMI) is to be classified under GST Tariff heading No. 3002 (Sub heading 30029030) on which the applicable rate of GST is 12%.
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2019 (12) TMI 1549
Input tax credit - reconstruction of the road work "Penugonda to Munamarru" in Penugonda Mandal of Achanta Assembly Constituency, West Godavari District - credit of GST paid on goods and services used as inputs in execution of "Works Contracts" - execution of Road work contracts to Government Engineering Departments - HELD THAT:- The applicant is providing work contract service under Section 2(119) of the CGST Act 2017, for construction of road ''Penugonda to Munamarru" in Penugonda Mandal of Achanta Assembly Constituency, West Godavari District - ITC for works contract can be availed by the applicant as he is in the same line of business and entitled to take ITC on the tax invoice raised by his supplies as his output is works contract services.
In the instance case, the applicant is the supplier of works contract services and the goods and services received by him for construction of immovable property (other than Plant or machinery) are neither owned nor capitalized in his own account, but passed on to the contractee. Hence even as per the provision of Section 17(5) (d), the applicant does not fall under this ineligible category. Thus the restriction contained under clause c & d of sub section 17(5) is not applicable to the applicant in the given circumstances.
The applicant is eligible for Input Tax Credit (ITC) in respect of the GST paid on goods and services used as inputs in execution of "Works Contracts". Input Tax Credit restriction under Section 17(5)(c) and 17(5)(d) will not apply to the applicant as his output is works contracts service.
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2019 (12) TMI 1501
Notification issued by Commissioner of State Tax, Gujarat State - HELD THAT:- As this Court is dealing with the petition under Article 226 of the Constitution of India, whereby, a writ of habeas Corpus is prayed for and also taking into consideration the earlier order dated 06.12.2019, we hereby direct the respondent authorities to produce the Corpus – Sureshbhai Ghadecha, who is in judicial custody pursuant to Arrest Memorandum No. DCST/ENF2/STO1/ Arrest Memorandum/201920/B. dated 06.12.2019 before this Court on the next date of hearing i.e. on 16th December, 2019.
This order is passed in presence of the officer of respondent No.3 Authority. Writ of this order be sent to the Jail Superintendent, Sabarmati Central Jail, Ahmedabad. S.O to 16th December, 2019.
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2019 (12) TMI 1500
Delegation of powers to Commissioner for authorizing the arrest - section 69 of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017 - HELD THAT:- Let there be a notice returnable on 9.12.2019, as though ostensibly there appears to be an arrest in accordance with law but the counsel for the petitioner is not wholly incorrect in contending that the arrest memo and ground of arrest does not disclose any contemplation or mulling over and coming to a decision for arrest the father of petitioner on account of statutory designated authority and therefore, the factum of arrest becomes absolutely illegal and thus, this Court will have jurisdiction to make appropriate order and even issue writ of habeas corpus.
The order of authorization, which has been referred to by the arresting officer in the arrest memo, whereunder, he has been authorized to arrest the father of petitioner - Application disposed off.
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2019 (12) TMI 1492
Rejection of Transitional credit available on the stock of goods - rejected on the ground that the tax payer had no technical glitches in filing TRAN-1 as per the system logs - HELD THAT:- The issue involved herein is no more res integra in view of the order of this Court M/S ASIAD PAINTS LIMITED, VERTIV ENERGY PVT. LTD., M/S. WEIWO COMMUNICATION PVT. LTD. AND ORS. VERSUS UNION OF INDIA, GOODS AND SERVICE TAX NETWORK, THE COMMISSIONER OF COMMERCIAL TAXES (GST) , THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES [2019 (12) TMI 464 - KARNATAKA HIGH COURT] and connected matters, whereby this Court has extended the period to file/revise the TRAN-1 by the registered persons under the Central Goods and Services Act, 2017 by 31.12.2019. Hence, the petitioner is entitled to avail the extended period for filing/revising of TRAN-01.
Petition allowed.
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2019 (12) TMI 1491
Violation of principles of natural justice - opportunity of hearing not provided - Non-payment of penalty and GST - satisfactory explanation for non-payment also not given - HELD THAT:- This Court had an occasion to deal with a similar issue in C. SANKAR VERSUS THE TAMIL NADU STATE MARKETING CORPORATION LTD, REP. BY ITS MANAGING DIRECTOR, THE SENIOR REGIONAL MANAGER, TASMAC, THE DISTRICT MANAGER, TASMAC, THIRU. M.R. RAJESHKANNA, SHOP SUPERVISOR, TASMAC [2019 (2) TMI 1929 - MADRAS HIGH COURT], which squarely apply to the facts of the present case.
The petitioner has been punished without even giving an opportunity. Without deciding the charge that has been made against the petitioner, the petitioner has been directed to pay the amount and on non payment, the petitioner has also been suspended from service. This clearly constitutes predetermination of the entire issue. The 3rd respondent cannot compel the petitioner to first pay the penalty and GST, and thereafter participate in the enquiry, and on nonpayment cannot suspend the petitioner. This procedure adopted by the 3rd respondent is like putting the cart before the horse. The petitioner is first punished and thereafter he is asked to attend for an enquiry. This clearly goes against the principles of natural justice.
The 3rd respondent is directed to issue a fresh show cause notice to the petitioner setting out all the details, within a period of four weeks from the date of receipt of copy of this order. On receipt of the show cause notice from the respondent, the petitioner is directed to submit his explanation/objection and also the documents relied upon by him, within a period of three weeks from the date of receipt of the show cause notice - petition allowed by way of remand.
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2019 (12) TMI 1464
Classification of goods - rate of tax - Air Conditioner Hose Assembly (suction discharge) used as part of Air Conditioner Compressor - taxable under Chapter heading 4009 of Custom Tariff Act, 1975 or otherwise? - HELD THAT:- The hoses are made up of vulcanised Rubber other than hard rubber, as communicated by the applicant. Further as per the facts mentioned in the application for advance ruling the product under question is a part of gas compressor and not of air conditioners. Further prior to GST regime the applicant was also classifying the said product under the Chapter Heading 4009. Thus, the impugned product shall be aptly classifiable under Chapter Heading 4009 and accordingly liable to such GST rate as prescribed under Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 (as amended).
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2019 (12) TMI 1463
Input Tax Credit - original invoices issued by service provider from old GST Number - invoices issued from the new GST Number under section 31 (3) (a) of the CGST Act, 2017 read with rule 53 (1) of the CGST rules, 2017 - invoices issued from new GST No., then from which date does the input is admissible i.e. original date or the revised date.
Whether the input tax credit is admissible on the basis of original invoices issued by service provider from old GST Number? - HELD THAT:- An Input Service Distributor could pass only the Input Tax Credit accumulated to him and in accordance with Rule 54 of the CGST Rules, 2017. Moreover, in the instant case the service provider has already claimed refund of the tax deposited under the old registration number (Input Tax Distributor category) - we are in unison with the jurisdictional authority that the input- tax credit, on the basis of invoices issued by the service provider from old GST No. 09AVKPS 1666H2Z1 (Input Service Distributor), could not be admissible to the applicant.
Whether under the CGST Act 2017, two registration certificate issued under the same PAN number, are to be treated as different legal entity or not? - If they are to be treated as different legal entity, whether the invoices issued by one business entity can be revised by the other legal entity? - HELD THAT:- Even if a person obtains two separate registrations, on the same PAN number, they are to be treated as distinct person under the CGST Act, 2017 - any person registered under the CGST Act, 2017, can only revise those invoices which were issued by him previously. However, in the instant case, we observe that one legal entity/ person (GST No. 09AVKPS1666H2Z1) has provided service and issued original invoices in lieu of providing such service. Whereas, these invoices were revised by another legal entity/ person (GST No. 09AVKPS 1666H3Z0). This fact has also been confirmed by the Additional Commissioner, CGST (Appeals), Noida.
In the light of Section 31 (3) (a) of the CGST Act, 2017 read with Rule 53 of the CGST Rules, 2017, it is not permissible to revise the invoices issued by one person/ legal entity by another person/ legal entity - the Input Tax Credit is not admissible to the applicant on the revised invoices issued by the service provider from the new GST No.09AVKPS1666H1Z0 under Section 31 (3) (a) of the CGST Act, 2017 read with Rule 53 (1) of the CGST Rules, 2017.
If the input is admissible on the basis of invoices issued from new GST No., then from which date does the input is admissible i.e. original date or the revised date? - HELD THAT:- As the Input Tax Credit is not admissible to the applicant on the basis of revised invoices issued from new GST No of the service provided, accordingly in this situation this question raised by the applicant become redundant and needs no reply.
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2019 (12) TMI 1462
Determination of Time of Supply - 'Deposit Works' being executed by the applicant - time of receipt of funds from the client government department or the time when expenditure incurred towards execution of the work is debited to 'Deposit Works account'? - value of such supply.
HELD THAT:- The amount received by the applicant is for certain supply of service, to be carried out by them. Further, as and when some part of the work gets completed, the proportionate amount gets debited from advance amount. Accordingly, it is observed that the contention of the applicant that the amount received by them as “Deposit Work” is a deposit and not advance, is not tenable. The amount received by them is rightly classifiable under advance received for supply of service.
As regard to the proviso to sub section 31 of Section 2 of CGST Act 2017 i.e. “Provided that a deposit given in respect of supply of goods or service or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply”, it is observed that the above said provision envisages a situation wherein the amount is received by the service provider as “Security deposit” for any particular work and the same get refunded after the completion of said work. Whereas, in the instant case, the amount received by the applicant is in the nature of “Advance payment” and not “Security deposit”. Thus the proviso in question does not apply in the instant case.
Time of supply of service - Section 13 of the CGST Act, 2017 - HELD THAT:- The time of supply is determined with reference to the time when the supplier receives payment with respect to the supply as well as a few other references like issue of invoice, receipt of goods etc. In general, the time of supply is earliest of issuance of invoice or receipt of payment. Therefore, in case of advance received for any supply, time of supply is fixed at the point when advance is received, irrespective of the fact whether the supply is made or not. Accordingly, GST needs to be paid with reference to the time at which advance is received. In view of this we observe that the time of supply in case of 'Deposit Works' being executed by the applicant would be the time of receipt of funds from the client (Government department).
Value of supply - Section 15 of the CGST Act 2017 - HELD THAT:- The value of the supply, on the advance payment received by the applicant, will be the amount of advance received by the applicant towards that particular work/ supply.
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2019 (12) TMI 1456
Permission for withdrawal of Advance Ruling application - whether the frozen chicken with unregistered brand name supplied by them be classified under NIL rate of GST? - HELD THAT:- Since the applicant himself have sought withdrawal of the instant application, the applicant is permitted to withdraw the application.
The application for advance ruling filed by the applicant is dismissed as withdrawn at the behest of the applicant.
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2019 (12) TMI 1455
Exemption from GST - telecommunication service to GHMC- Hyderabad, Telangana - GST amounts are being remitted by the applicant to Government as per the notifications issued from time to time - exemption as per entry No. 3 of CGST Notification No. 12/2017-(R) dated 28th Jun 2017 opining that the telephone services are being used for performing functions under article 243W of Constitution - HELD THAT:- In terms of Sec. 2(69) of the CGST Act, the recipient of the service i.e. GHMC falls within the definition of ‘local authority’ and hence the services provided by the applicant are said to have been rendered to the local authority.
The applicant have not produced any evidence by way of contract/agreement/other document during written/oral submissions suggesting that the services provided by them do not involve any supply of goods. In the absence of the same it cannot be held that the services provided by the applicant are “Pure Services”.
In order to be eligible for exemption under entry No. 3 of the Not. No. 12/2017- CT (R), the service must be by way of any activity in relation to any of the aforesaid functions. It appears that the telephone services are basically used by the personnel of the GHMC in their offices and provision of the said services has no relation whatsoever to the above mentioned functions.
Reliance can be placed in the case of Hon’ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT] wherein it was held that “exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification”. - Applying the ratio of the above judgements to the present case, it can be concluded that telephone services provided by the applicant cannot be regarded as pure services and these cannot be held as the activities in relation to any of the functions entrusted under Article 243W of the Constitution on the strength of the words “in relation to”. In their application & enclosures also, the applicant has not adduced/provided any substantiation to show establish the category.
The services provided by the applicant are not eligible for exemption as provided for under entry No. 3 of the Not. No. 12/2017-CT(R) dated 28.06.2017(as amended) - Since the services provided by the applicant are taxable services, the tax invoices issued by the applicant should indicate the amount of tax which shall form part of the price at which such supply is made as required under Sec. 33 of the CGST Act, 2017.
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2019 (12) TMI 1449
Classification of goods - rate of GST - Sandal Wood purchased by them in the auction conducted at the Forest Depot, units being situated in the Special Economic Zone (SEZ) in the State of Tamil Nadu - inter-state supply or not - Zero-rate supply or not - HELD THAT:- In the case at hand, the Sandal Wood stocked in the Depot of the Forest Department at Marayoor was put to auction, by specifying the quantity thereof. On a perusal of the tender notification as well as the conditions incorporated therein, it is revealed that, the successful bidder should take delivery of the goods from the said Depot, on remittance of the requisite amount. Therefore the supply of goods in between the auctioneer and the successful bidder ends up with delivery of goods at the Depot itself. Hence the supply of goods in the case at hand does not involve any movement of goods. Therefore, going by Section 10(1)(c) of the IGST Act, the supply of goods in the case at hand is a supply which does not involve movement of goods. Therefore the place of supply can only be considered as the location of such goods at the time of delivery effected to the recipient, which is at the Depot at Marayoor, within the State itself. In the case at hand, the location of both the supplier and the place of supply are within one State itself. Therefore the supply of goods in the case is not in two States or in two different Union territories or in a State and in a Union territory, as contemplated under Section 7(1) of the IGST Act. But sub-section (5) of Section 7, especially sub-clause (b) therein, provides that, if the supply of goods is to a SEZ unit, such supply shall be treated to be a supply of goods in the course of inter-State trade or commerce.
Further, going by provisions contained in Section 8 of the IGST Act, which determines what is intra-State supply, which provides that, when the location of the supply and the place of supply of goods are in the same State or same Union territory it shall be treated as intra-State supply. In order to ascertain as to where is the place of supply, the provisions contained in Section 10 can be of assistance. [Clause] (c) of Section 10(1) provides that, where the supply does not involve movement of goods, whether by the supplier or by the recipient, the place of supply shall be the location of such goods at the time of delivery to the recipient. In the case at hand, it cannot be disputed that, pursuant to confirmation of the auction, the goods has to be delivered by the appellants to the respondent on making deposit of the requested amount. In other words, the supply of goods in the case will be concluded by effecting delivery of the goods to the recipient at the Depot in question. Since the location of the goods at the time of delivery by the recipient is the Depot at Marayoor, the place of supply is also within the State. Hence it can safely be concluded that the location of the supplier and the place of supply of goods are within the State of Kerala itself. Therefore the “supply of goods” in the case will come within the purview of the intra-State supply as determined in Section 8(1) of the IGST Act.
Rate of tax applicable - HELD THAT:- Section 16 of the IGST Act clearly provides that, supply of goods to a SEZ Unit is a “zero-rated supply”. Therefore the demand made by appellants 1 and 2 for payment of IGST at the rate of 18% cannot be sustained - The instance of taxation or the taxable event is the supply of goods contemplated under the IGST Act. It is specifically provided that supply of goods made to a SEZ unit is an inter-State supply. Further it is also evident from the provisions that, despite the location of the supplier and the place of supply is within the State itself, it cannot be treated as an intra-State supply, because the supply is made to a SEZ unit. Going by provisions contained in the IGST Act, the inter-State supply in the instant case is a “zero rate supply”. Therefore, there exists no tax liability involved in the supply of goods. That being the position, coupled with the condition incorporated in the tender that the value of the goods need to be paid only with applicable tax, would make it clear that the tenderer is not liable to pay any tax at 18%. Such a rate is not at all applicable with respect to the supply of goods involved.
Under the Goods and Services Tax regime, any transaction of ‘supply of goods’ is governed by the definitions and provisions contained in the CGST Act and in the IGST Act. When it is provided under the statute as to what determines the nature of ‘inter-State supply’ and ‘intra-State supply’, no one can go beyond provisions of the said Acts in order to decide the nature of the supply. From the conclusions arrived, it need to be held clearly that, going by provisions of the IGST Act the supply to a SEZ unit can only be considered as inter-State supply. As long as such supply remains as a ‘zero-rated supply’ the demand for payment of 18% IGST cannot be sustained.
Lastly, yet another contention was raised to the effect that, the proviso to Section 8(1) exempting supply of goods to SEZ unit from the purview of intra-State supply, can be deemed to apply only with respect to a SEZ unit situated within the State itself. For accepting such a contention, something has to be read into the plain and literal meaning of the proviso, which is not at all warranted, because the literal meaning or the intentional meaning would not give rise to any ambiguity or lack of clarity. Further, Section 7(5)(b) would make it clear that despite the location of the supplier and the place of supplier being not within two different States, it should be treated as a supply of goods in the course of inter-State trade, when the supply is made to a SEZ unit. When the rate applicable to such supply is determined as ‘zero-rate supply’, the demand for any higher rate cannot be sustained. It is pertinent to note that, neither under Section 7(5)(b) or under the proviso (i) of Section 8(1); nor under Section 16(1)(b) there is no distinction with respect to the location of the SEZ unit, whether it is within the State or outside the State. Therefore the above argument cannot be countenanced, at any rate.
The conclusions arrived by the Learned Single Judge and the relief granted in the impugned judgment do not suffer from any illegality, error or impropriety - Appeal dismissed.
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2019 (12) TMI 1440
Scope of Advance Ruling application - rate of tax on outdoor catering service - applicant contends that vide notification No. 20/2019-Central Tax (Rate), dated 30th September, 2019 the Government has reduced tax on outdoor catering to 5% - HELD THAT:- The applicant has preferred the application for seeking advance ruling on various issues but it has failed to frame any question. Instead of posing any question before the authority, the applicant has given a description of the activities undertaken by it. The applicant was also given personal hearing on 17.12.2019 wherein Advocate, Sh. Manoj Mittal and C.A, Bhuvan Mittal appeared before the Authority, but even then there was lack of clarity on the framing of question(s) for Advance Ruling. Accordingly, the application was not admitted.
The instant application for advance ruling is rejected under Section 98(2) of the CGST/HGST Act.
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2019 (12) TMI 1365
Validity of arrest of petitioner's father made by the State Tax Officer-3, Enforcement, DIV-2, Ahmedabad vide Arrest Memorandum Dated 06.12.2019 - foundation of this petition is that the father of the applicant has been deprived of his personal liberty, without following the procedure established by law, which is violative of Article 21 of the Constitution of India.
HELD THAT:- The case of the respondent Authorities is accepted by this Court to this extent. But at the same time, it is also held by this Court that, not only any officer authorised by the Commissioner, but even the Commissioner himself also could not have ordered arrest of any person under the Act, if he (the Commissioner) has not arrived at the conclusion or is satisfied that he (the Commissioner) has reasons to believe that a person has committed any offence under the Act. The satisfaction to be arrived at by the competent authority in this regard is the condition precedent for ordering arrest of that person. The obligation to be satisfied with regard to the reasons to believe that a person has committed any offence under the Act is cast upon the Commissioner. Whether the said duty could have been delegated by the Commissioner to any officer or not is not gone into by this Court leaving it open to be gone into in an appropriate case, since this Court finds that as a matter of fact, no delegation is made by the Commissioner in that regard vide order dated 23.06.2017 – Entry No.49.
If any citizen is deprived of his personal liberty, without following the procedure established by law, it would be violative of Article 21 of the Constitution of India, the High Court does have power under Article 226 of the Constitution of India to examine the issue and pass appropriate order. Even if a person is in judicial custody and even if the bail is asked for by him and is rejected, either by the Magistrate or even by the Sessions Court, that itself may not be the deciding factor to form an opinion, whether the judicial custody is otherwise legal or not.
Thus, this petition can not be said to be not maintainable.
It is attempted on behalf of the respondent Authorities to demonstrate before this Court how the corpus can be said to have committed offence under the Act. Learned Public Prosecutor has referred to the details in this regard as contained in the affidavit in reply filed on behalf of the State Authorities. Since we are not examining whether the corpus has committed any offence under the Act or not, dealing with those submissions, would be beyond the scope of the petition. We do not intend to expand the scope of this petition. The details with regard to the illegalities committed by the corpus, as perceived by the State Authorities, is therefore not recorded in this order.
The satisfaction recorded by the Joint Commissioner, with regard to he (the Joint Commissioner) having reasons to believe that the corpus - Sureshbhai Ugarchand Gadhecha has committed offence under the Act, is without any authority of law and is of no consequence and can not be taken cognizance of. Consequently, the first requirement of Section 69(1) of the Act, which is condition precedent to order arrest of any person under the Act, is not satisfied in the present case. The arrest of Sureshbhai Ugarchand Gadhecha - the corpus is thus without any authority of law. Thus, the corpus has been deprived of his personal liberty, without following the procedure established by law and is therefore violative of Article 21 of the Constitution of India and his continuance in judicial custody is no less than illegal confinement.
The arrest of the corpus – Sureshbhai, son of Ugarchand Gadhecha, by the State Tax Officer-3, Enforcement, DIV-2, Ahmedabad, vide Arrest Memorandum No.DCST/ENF-2/ STO-3/ARREST MEMORANDUM/2019-20/B, Dated : 06.12.2019, is held to be without authority of law and thus, illegal - petition allowed
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2019 (12) TMI 1346
Permission for withdrawal of appeal - Refund of accumulated input tax credit of CGST & IGST paid - export of goods without payment of Integrated Tax during the month of July 2017 - HELD THAT:- The appellant has now requested to allow them to withdraw their appeal - Since, the appellant has requested to allow them to withdraw their appeal, they are allowed to withdraw their appeal - appeal dismissed as withdrawn.
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