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GST - Case Laws
Showing 81 to 100 of 1693 Records
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2020 (12) TMI 797 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Service of providing providing labour to the Municipal Corporation, Government Offices, Government Ashrams, and Government Medical Collage and hospitals - applicant is mainly supplying manpower and only in the case of Government Ashram school, applicant is providing goods in the form of vegetable and mutton as per the contract executed - Whether the supply of impugned services like; supply of staff for cleaning the District Collector’s office premises; providing manpower in the form of skilled assistants and technicians, to Hospitals and Dispensaries run by Government medical college, are covered under clause 1 & 2 of Twelfth Schedule of Article 243W? - HELD THAT:- Applicant, is running a society of labour belonging to the economically weaker sections of society, having certain objectives as cited supra in applicant’s submission. As per the submissions, applicant is mainly engaged in providing labour to the Municipal Corporation, Government Offices, Government Ashrams, and Government Medical Collage and hospitals and all the activities carried out by them directly or indirectly, helps the Municipal Corporation to achieve its objective listed in Maharashtra Municipal Corporation Act, 1966 - On the perusal of the work orders, it is seen that applicant is mainly supplying manpower and only in the case of Government Ashram school, applicant is providing goods in the form of vegetable and mutton as per the contract executed.
Clause No. 1 and 2 are related to Urban planning including town planning and Planning of land - use and construction of buildings, which are totally different from the applicant’s supply of services. The applicant is supplying manpower for specific purposes like computer work, cleaning of office premises, security, skilled and unskilled labour, etc. - such supply of services and goods cannot be said to be related to functions specified under Clause land 2 of the 12th Schedule. Applicant has not provided manpower in relation to any urban planning or planning of land-use and construction of building. Further, the applicant has not brought on record as to how their supply is in furtherance of functions specified in the above mentioned Clause 1 and 2. Hence it is felt that, such subject supply is out of purview of the scope of Clause 1 and 2 of 12th Schedule of Article 243 W of the Constitution, as functions entrusted to Municipality.
Whether the meals provided to Government Ashrams for economically weaker class of students fall within Clause 1 & 2 of the Twelfth Schedule of Article 243W? - HELD THAT:- It is seen that Clause 1 & 2 of the 12th Schedule enumerates certain functions to be undertaken by a Municipality in relation to and including Urban planning including town planning and Planning of land - use and construction of buildings. First of all the applicant is not supplying any meals, in fact their submissions reveal that they are only supplying vegetables and mutton which cannot be considered as meals. Further such supply can in no way be correlated with the functions mentioned under Clause 1 & 2 of the 12th Schedule and therefore we hold that supply of vegetables and mutton are not covered under the said Clauses 1 & 2.
Whether the services provided by them fall under the Entry No. 3 of Exemption Notification No. 12/2017 dated 28th June, 2017, as amended, since the said services are in the nature of pure labour services? - HELD THAT:- To the Residential Deputy Collector and Collector office, Amravati, applicant is providing labour for cleaning of office premises. Applicant is also providing security guard for security purposes. While the services of manpower supply as submitted by the applicant, can be considered as pure services and the Collector office can be considered as State Government office, the applicant has not made submissions to show that the functions being undertaken are activities carried out in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to any function entrusted to a Municipality under Article 243W of the Constitution - Similarly in the case of supply of security guards to the Department of District Mahila and child development, Amravati (State Govt.); supply skilled and unskilled staff to the Divisional Commissioner, for Divisional Krida Sankul Samiti, Amravati (state level) for the samiti office; the applicant has not made submissions to show that the functions being undertaken by them are activities in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to any function entrusted to a Municipality under Article 243W of the Constitution.
The applicant also provides manpower for computer working to the Amravati Municipal Corporation (AMC). The AMC is a Municipality and certain functions are entrusted to it under Article 243W of the Constitution. Municipal Corporations undertake a lot of work pertaining to their jurisdiction and are liable to pay GST wherever functions are undertaken which does not find mention under 11th Schedule. Hence in absence of such information we find that the applicant will not be eligible for exemption under Entry No. 3 of Exemption Notification No. 12/2017 dated 28th June, 2017.
All the issues are answered in negative.
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2020 (12) TMI 796 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of goods - rate of GST - Tyre Pyrolysis Oil - Applicant has submitted that pyrolysis oil should be qualified as either a Biodiesel (HSN 3826) as it is derived from rubber part of the Tyre which is renewable in nature just like Palm Oil made from Palm fruit used to make biodiesel or as a Marine Fuel (HSN 2710) as its specifications meet that of Marine fuels - HELD THAT:- The Applicant is engaged in recycling of the waste tyres used by vehicles and pyrolysis oil is recovered during the said process of recycle, along with other products like Iron and Steel and carbon black. It is only the rubber component of the tyre which is converted into Pyrolysis Oil, which can be used for heating purposes and as a liquid fuel. Applicant has submitted that Pyrolysis oil can also be sold as a liquid fuel - Since there is no specific and separate schedule entry prescribed for “Tyre pyrolysis oil”, we are required to classify the said product.
The Applicant vide email dated 20.11.2020, has made submissions which appear to have been sourced from the internet. However they have not made any submissions in respect of the chemical composition of their product nor have submitted any test report which shows the composition of their product - In view of non-submission of details, this Authority cannot pass a Ruling on the questions raised by the Applicant.
The said question cannot be answered in view of non-submission of full details by the Applicant as mentioned under the Observations and Findings section of the order.
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2020 (12) TMI 795 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Rectification of mistake - an error has been noticed under the observation part in para No.5.2.6 at two places wherein the date of amendment of Section 17(5) of the CGST Act. 2017 is mentioned as “01.12.2016” instead of “01.02.2019” - HELD THAT:- It is noticed that such typographical error has indeed occurred in para 5.2.6 and needs correction. Therefore, this corrigendum order is issued, to correct the error.
Application allowed.
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2020 (12) TMI 794 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Rectification of mistake - typographical error has indeed occurred in the said para 2.7 and needs correction - HELD THAT:- This corrigendum order is issued to correct the above mentioned error.
Application allowed.
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2020 (12) TMI 793 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Taxability - sale of application, registration of course, inspection, etc with the Principal Supply' of “affiliation” provided by the Bharathiar University to its constituent colleges (viz) Self-financing and management colleges - composite supply of services or not - Whether the services provided by the University to its constituent colleges are exempted vide sl.no 66 of Notification no.12/2017 CT(Rate) dated 28.06.2017? - HELD THAT:- The sale of application, registration, inspection are all supplies which are naturally bundled and supplied in conjunction in the course of the activity of extending affiliation. Thus, all the fees in question collected by them and the supplies thereto results in the activity of affiliation of the institution, upgradation, increase in the capacity/course, etc and are governed by the UGC regulation.
The amendment by Notification No. 2/2018-C.T.(Rate) dated 25.01.2018 was proposed to exempt services relating to admission to, or conduct of examination for admission to all educational institutions,. as defined in the notification(definition 2(y) of Notification No. 12/2017-CT(R)). Thus the entry at 66(b)(iv) seeks to exempt only those services provided to such institution in relation to admission of students or conduct of examination for such admission to all the educational Institutions, including the higher educational institutions, which were not exempted up to this amendment - As per the definition of affiliation under regulation 2.1 above, affiliation in relation to a college is an activity to recognize such college to the privileges of the university to which the institution is affiliated. In other words, the activity of affiliation is to monitor whether the institution possess the required infrastructure in terms of Space, Technical prowess, financial liquidity, faculty strength, etc and thereby eligible for the privileges to conduct the course/programme of study for the degree/title extended by the University to the students enrolled in such institutions.
In the case at hand, it is evident that the affiliation services provided by the applicant enables the said institution to conduct the course/programme and do not relate to admission of students to such course/programme in the said institutions or conduct of examination for such admission in the said institution. Also, the exempted services on the conduct of examination is that related to the admission to such institution and not related to the examination based on which degree/title, etc are conferred to the students, as is being claimed by the applicant, though we do not part any opinion on the claim of the applicant that they extend such services to the institutions by extending the affiliation - thus, the composite supply of sale of application, registration, inspection, etc with 'affiliation' of the said institution/course as the 'Principal supply' are not exempted under the entry SI.No.66 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017.
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2020 (12) TMI 792 - SC ORDER
Restriction on Rectification of GSTR-3B return - Refund of excess tax paid - Constitutional validity of Rule 61 (5) of the GST Rules, Form GSTR- 3B and Circular No. 26/26/2017-GST dated 29.12.2017 - vires of CGST Act and contrary to Articles 14, 19 and 265 of the Constitution of India - challenge is principally for the reason that Petitioner is being prevented from correcting its monthly GST returns, and consequently seeking refund of the excess taxes paid.
HELD THAT:- Issue Notice.
List the matter in the first week of March, 2021 for final disposal.
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2020 (12) TMI 791 - TRIPURA HIGH COURT
Condonation of delay in rectification of the tax invoice, mentioned in the name of petitioner - whether the Superintendent of State Tax being the authority which passed the order dated 15.11.2018 had the authority to condone the delay on the face of the petition filed under Section 161 of the TSGST Act for rectifying the defects or errors in the impugned notice dated 10.10.2018 and the order dated 15.11.2018? - applicability of Section 29(2) of the Limitation Act vis a vis Section 69 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - HELD THAT:- Section 161 of the TSGST Act provides that for purpose of any error which is apparent on the face of the record in the decision or the order or the notice or the certificate or any other documents issued by any authority, the said authority can exercise the said power to rectify either on own motion of the said authority or by the officers appointed under TSGST Act or CGST Act or by the affected person, if such action is taken within a period of three months from the date of such decision, or order or notice or certificate or any other documents as the case may be. The first proviso stipulates that no such rectification shall be done after a period of six months from the date of issue of such decision or order or notice or certificate or any other documents. The second proviso provides that the said period of six months shall not apply in such cases where the rectification is purely in the nature of correction of clerical or arithmetical error, arising from any accidental slip or omission.
It is apparent on the face of the said provision of Section 161 of the TSGST Act that this is a complete code within itself and it has impliedly excluded the Limitation Act. Thus, what has been observed by the Superintendent of Taxes in the decision communicated by the reply dated 17.12.2019 does not suffer from any infirmity. Moreover, the Limitation Act will not apply automatically unless it is extended to the special statute such as TSGST Act inasmuch as law in this regard is absolutely unambiguous that except in the case of the suit, appeal or application in the court, the limitation of Act will not apply/extend for the local or special statute. Thus, the petitioner‟s contention in respect of the extension of the Limitation Act stands dismissed. That apart, in the considered view of this court, the rectification as sought is not covered by Section 161 of the TSGST Act.
It is needless to say that when a legal action is barred by limitation unless that bar is overcome, no decision can be rendered on merit.
Petition dismissed.
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2020 (12) TMI 790 - ALLAHABAD HIGH COURT
Seizure and detention of goods - failure to maintain the records as required to be maintained under Section 35 (1) of the CGST Act read with Rules 56 and 57 of the CGST Rules - Confiscation - penalty - HELD THAT:- Section 9 of the CGST is the charging section which provides for levy of tax on supplies of goods or services. Section 12 of the CGST Act provides for time on which the tax are to be paid and elaborates the “time of supply of goods” and Section 12 (2) clearly provides that the “time of supply of goods” is the date of issue of invoices or the date of receiving of the payment in respect to such supplies - Section 35 (1) clearly provides that all the registered person are required to keep and maintain at the principal place of business a true and correct account of things specified in Clause (a) to (f). The Second proviso to Section 35 (1) ,Rule 56 and Rule 57 make it further necessary to keep the said documents as specified in Clause (a) to (f) in the electronic form.
In the present case, the proper officer was empowered to determine the liability of payment of tax in terms of the powers conferred under Section 35 (6) after resorting to the procedure as established under Section 74 of the Act - Although in terms of the provisions of Section 35 (6), the unaccounted goods are ‘deemed to be supplied’ however, determination and quantification of the tax on the said ‘deemed supply’ has to be done in accordance with Section 73 or Section 74of the Act - A perusal of Section 73 and 74 makes it clear that a show cause notice is bound to be served prior to determination of the tax leviable on the ‘deemed supply’ whereas in the present case no such notice is available on record and it is common ground that apart from the said proceedings, no other proceedings have been initiated and concluded under Section 73 or 74 of the Act.
Confiscation of goods - Section 130 of the Act - HELD THAT:- In the present case, even if it is admitted, for the sake of arguments, that the documents were not maintained at the registered office or the other place of business, there is no finding to the effect that any supply was made with an intent “to evade payment of tax” as is required under Section(i) of Section 130 (1) - there is nothing on record to establish that the petitioner did not account for any goods on which he is liable to pay tax under the Act (as required to attract Section 130 (1)(ii).
It has not been established that there was any contravention of any provision or any Rules with an "intent to evade payment of tax" - none of the ingredients which are required for confiscation existed in the present case and thus, the confiscation itself was wholly arbitrary and illegal.
Search and Seizure - Section 67 of the CGST Act, 2017 - HELD THAT:- A perusal of the said section makes it clear that proper officer should have "reasons to believe" that there is any suppression of any transaction relating to supply of goods by the taxable person or as claimed or has claimed input tax credit in respect of entitlement or has indulged in contravention of the provisions of this Act or the Rules made there under to evade tax under this Act, or such person is keeping his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act - In the present case, as the petitioner has not challenged the seizure order, I am not going to the said question in the absence of any pleadings or the arguments advanced or document produced in respect of the same.
Levy of Penalty under Section 122 - HELD THAT:- The facts of the present case makes it clear that even if the allegations of the department, as adjudicated and confirmed in an appeal are accepted to be true, the offence committed by the petitioner would fall under the offence specified in Column B above for following reasons; firstly, the only allegations are that the petitioner has not maintained the Book of Accounts as are required under the Act and the Rules and secondly the penalty has been imposed holding the Petioners conduct in violation of Section 122 (1) (xvi) and (xvii) of CGST Act read with Section 122(1) (xvi) & (xvii) of UP GST Act and thirdly, no exercise for quantification of the tax evaded has been done in pursuance to the powers conferred under Section 35 (6) read with Section 73 or 74 of the Act, as such, I have no hesitation in holding that in the given facts and circumstances of the case for the violations alleged and established against the Petitioner, the maximum penalty that could be imposed upon the petitioner is ₹ 10,000/-.
The impugned orders dated 15.1.2020 and 27.1.2020 (Annexure No. 5) is set aside insofar as it relates to confiscation of goods and imposition of penalty in excess of ₹ 10,000/-, as the confiscation has been set aside, there is no question of payment of redemption fine - the total penalty imposed upon the petitioner is quantified at ₹ 10,000/- - Appeal allowed in part.
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2020 (12) TMI 789 - KERALA HIGH COURT
Detention of a consignment of goods - allegation that the consignment was not covered by a valid delivery chalan that was one of the prescribed documents for transportation of exempted goods - HELD THAT:- The impugned judgment does not call for any review. It has to be borne in mind that when goods are detained in the course of interstate transportation, the power to detain stems from Section 20 of the IGST Act which makes the provisions of the CGST Act, in relation to offences and penalties, inspection, search, seizure, arrest etc., applicable mutatis mutandis in relation to integrated tax, as if they were enacted under the IGST Act. The 4th proviso to Section 20 of the IGST Act provides that where penalty is leviable under the CGST Act and the SGST Act, the penalty leviable under the IGST Act shall be the sum total of the said penalties.
Whether the 4th proviso would be attracted to the detention that was the subject matter of the Writ Petition more so when the transportation involved was of exempted goods? - HELD THAT:- It is clear from a reading of provision of Section 129 (1)(b) of the CGST, that when exempted goods are transported inter-state, in contravention of the provisions of the CGST Act, the goods and the conveyance used for transportation are liable to detention and can be released on payment of an amount equal to 5% of the value of the goods or 25,000 rupees whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty - In the instant case, it is not in dispute that it was not the owner of the goods, who came forward for the payment of tax and penalty. It is also not in dispute that there was no occasion for payment of any tax and penalty as the goods under transportation were exempted from tax under the IGST Act. The only amount to which the writ petitioner was liable was the amount equal to 5% of the value of the goods or 25000 rupees whichever was less as mandated under Section 129(1)(b) of the CGST Act.
It has to be borne in mind that in the case of an interstate transaction the applicable statute is the IGST Act and the power of detention is exercised by virtue of the provisions of Section 20 of the IGST Act read with Section 129 of the CGST Act. There is no reference to the provisions of the SGST Act in Section 20 of the IGST Act, save for the mention in the 4th proviso to Section 20. In my view, the 4th proviso would be attracted only in a situation where, in respect of an interstate transaction, there is a liability to pay tax under the IGST Act that includes components of tax under the CGST and SGST Acts or where a penalty based on tax liability is attracted under both of the said enactments - the inference is inescapable that the amount to be collected from a person who is found to have transported exempted goods contrary to the provisions of the IGST Act, can only be such amount as is found payable under the CGST Act since it is the provisions of that Act that are to be deemed as enacted under the IGST Act. In other words, there is no provision that requires one to treat the provisions of the SGST Act as forming part of the IGST Act.
Thus, the liability of a person, who is not the owner of the goods, and who has transported exempted goods in contravention of the IGST Act, can only be in an amount equal to 5% of the value of the goods or 25000 rupees whichever is less, as specified under the CGST Act. He cannot be further mulcted with a similar amount under the SGST Act since the provisions of tax and penalty under the SGST Act are not attracted to the inter-state transaction of exempted goods covered by the IGST Act - review petition dismissed.
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2020 (12) TMI 788 - GUJARAT HIGH COURT
Grant of Anticipatory Bail - offence under Sections 67(2) of CGST Act, 2017 and GGST Act, 2017 - HELD THAT:- Considering the facts and circumstances of the case, and since the present application has been preferred against the summons issued by the authority under the Act, it is expected that the authority concerned shall comply with the principle laid down by this Court in the decision rendered in Special Civil Application No.13679 of 2019 and allied matters dated 20.10.2020 [2020 (11) TMI 40 - GUJARAT HIGH COURT] in its true spirit.
Application disposed off.
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2020 (12) TMI 787 - MADRAS HIGH COURT
Principles of Natural Justice - Refund of CGST - petitioner would point out that, without affording sufficient opportunity of hearing to the petitioner, the said order has been passed rejecting the petitioner's application for refund - HELD THAT:- Admittedly, no hearing was afforded to the petitioner by the second respondent before passing of the impugned order dated 27.03.2019 rejecting the petitioner's application for refund.
As seen from Rule 92(3) of the Central Goods and Services Tax Rules, 2017e, it is clear that any application for refund can be rejected only after affording sufficient opportunity of hearing to the party, who seeks for refund. The first respondent in the impugned order dated 20.08.2020 has also confirmed that no hearing was afforded to the petitioner by the second respondent and despite the same, has dismissed the appeal erroneously.
When Rule 92(3) of the CGST Rules, 2017, makes it clear that hearing is mandatory before rejecting any application for refund, the second respondent as well as the first respondent in their respective impugned orders have arbitrarily and by total non application of mind to the said Rule has rejected the petitioner's application for refund.
The matters are remanded back to the second respondent for fresh consideration and the second respondent shall pass final orders on the refund application dated 27.03.2019 submitted by the petitioner on merits - Petition allowed by way of remand.
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2020 (12) TMI 786 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Goods or not - e-goods - sale/ supply within state - classification of services - rate of GST - exemption from GST or not - reverse charge mechanism - procurement from foreign supplier and supply from out of India - customer is from India and paying the consideration in dollar - exports or not - rate of SGST & CGST or IGST - customer pays for the e goods in Indian rupees and goods delivered through CLOUD located outside India - customer / buyer is from out of India and payment is done in dollar - goods/ services are stored in CLOUD which are the servers outside India - not imported into India and the services are stored on CLOUD and therefore it cannot be said to be imports or not - rate of GST if RCM applicable.
Whether “e-goods”, as commercially known in the market, are “goods” as defined in the GST Acts or are they services as per GST Act? - HELD THAT:- In the subject case the e-goods, referred to by the applicant are ‘online gaming’, as stated by him during the course of Final Hearing. Section 2(17) of the IGST Act, 2017, defines ‘online information and database access or retrieval services’ (OIDAR) as “services whose delivery is mediated by information technology over the internet or an electronic network and the nature of which renders their supply essentially automated involving minimal human intervention and impossible to ensure in the absence of information technology and includes electronic services..(vii) Online Gaming'' - This definition will answer the first question posed by the applicant i.e. e-goods (in this case online gaming) will be considered as services under the GST Laws.
If they are goods, what is the HSN classification and if services, what is the service classification and rate of GST on its sale/ supply within state? - Whether they are exempted from GST? - If Not exempted, what is the rate of GST on supply? - HELD THAT:- The Code wise List of services finds mention in Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. In the subject case we find that the applicant is supplying online content services - the subject services i.e. online gaming falls under SAC 998439. All services covered under the Heading 9984 attract a GST rate of 18%.
In what circumstances will IGST, under reverse charge, be applicable or whether it is applicable in the situation of procurement from foreign supplier and supply from out of India? - HELD THAT:- There is a supply of OIDAR services to the applicant from suppliers based abroad. The nature of OIDAR services are such that it can be provided online from a remote location outside the taxable territory. A similar service provided by an Indian Service Provider, from within the taxable territory, to recipients in India would be taxable. In cases where the supplier of such service is located outside India and the recipient is a business entity (registered person) located in India, the reverse charge mechanism would get triggered and the recipient in India who is a registered entity under GST will be liable to pay GST under reverse charge and undertake necessary compliances. If the supplier is located outside India and the recipient in India is an individual consumer not registered under GST Laws, in such cases also the place of supply would be India and the transaction is amenable to levy of GST. In such case the individual should obtain registration and pay GST under reverse charge.
If the customer is from India and paying the consideration in dollar, whether it will be allowed as exports or if not allowed as exports then whether GST is leviable? What is rate of SGST & CGST or IGST? Under which HSN Code or SAC? - HELD THAT:- In case applicant’s customer is from India i.e. taxable territory. Hence, GST would be liable on such transactions. In the case of supply of taxable service the word ‘consideration’ is the key. As per Section 2 ((31) of the CGST Act, 2017, Consideration, includes any payment to be made, whether in money or otherwise.
If customer pays for the e goods in Indian rupees and goods delivered through CLOUD located outside India whether SGST & CGST or IGST leviable on such transactions? - HELD THAT:- The applicant has not mentioned whether the said customer is located in India or abroad but since the applicant has mentioned that the payment is in Indian Rupees we assume that the customer is in India which is a taxable territory and since the applicant is also located in India, GST is leviable on such supply of services.
Place of supply - In case where customer / buyer is from out of India and payment is done in dollar, according to us it is export of goods / services and therefore neither SGST & CGST is leviable? Please clarify the same - HELD THAT:- The clause (e) of Section 97 (2) of the CGST Act, 2017 has got a very wide connotation and would cover all sorts of transactions, where the Advance Ruling on the questions related to the determination of the liability to pay tax can be sought by the Applicant - the applicant is supplying OIDAR services in the subject case and as per the provisions of Section 13 (12) of the IGST Act, in such cases, the place of supply of online information and database access or retrieval services shall be the location of the recipient of services, in this case the customer who is located abroad.
In the subject case, the applicant has not provided details mentioned in the aforesaid seven non-contradictory conditions and therefore we are not able to come to any conclusion with respect to place of supply i.e whether the recipient in the subject case is in non-taxable territory or is deemed to be located in taxable territory. Also, the applicant did not attend online hearings scheduled on 10.11.2020 and 01.12.2020 and requested for adjournment. The first request for adjournment in respect of online hearing dated 10.11.2020 was received from the applicant vide email dated 05.11.2020 and adjournment was granted. The second request for adjournment in respect of online hearing dated 01.12.2020 was not granted as already sufficient opportunities had been given to the applicant for presenting his case on the said issue - in view of details having not been submitted by the applicant, we are unable to answer this question.
In case buyer is from India, the goods/ services are stored in CLOUD which are the servers outside India, therefore even though payment is received in rupees, it is again export of services being services are received from distantly installed servers. Hence No CGST and or SGST is leviable? - HELD THAT:- In respect of this question, it is seen that the service is supplied by the applicant from taxable territory to recipients who are also located in taxable territory. The taxable event under GST Laws is ‘supply” of goods or services or both and the supplier of such goods or services or both, is liable to pay GST. In this situation since both, the supplier and recipient of services are located in taxable territory, the subject services will not be considered as exported and the applicant will have to discharge his GST liability on the amounts received for supplying such services.
Whether IGST is applicable under section 5(3) & 5(4) of the IGST Act, according to us it is not of because it is not imported into India and the services are stored on CLOUD and therefore it cannot be said to be imports and thus not liable for RCM? - If suppose RCM is applicable then its rate? - HELD THAT:- The applicant is required to obtain registration and pay GST under reverse charge mechanism. We reiterate that IGST is applicable under section 5(3) & 5(4) of the IGST Act at the rate mentioned in para 5.4.1 above i.e @18%.
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2020 (12) TMI 785 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of purchase of Flat - allegation that the Respondent had not passed on the benefit of ITC to him by way of commensurate reduction in the price of his residential unit and that GST had been charged on the amounts due to him against payments to be made by him to the Respondent - violation of the provisions of Section 171 (1) of the CGST Act, 2017 or not - HELD THAT:- The Respondent had got Affordable Housing “The Millenia 37D” project approved under the Haryana Affordable Housing Policy and allotted flats to the successful buyers on 27.10.2017 through draw of lots He invited applications for allotment of houses via advertisement in newspapers. The Applicant No. 1 had applied for allotment of a flat and the draw of lots for allotment of houses was conducted on 27.10.2017 in the presence of the committee constituted under the above Policy. It is also revealed that first builder buyer agreement was executed on 08.11.2017 vide which the terms and conditions for allotment of Flat were settled. It is also apparent from the record that the Respondent had received the Environment Clearance from the State Environment Impact Assessment Authority Haryana on 21.08.2017, also the work order for construction to contractor was given on 22.09.2017 before which he could not have started the execution of the project. On the basis of the sequence of the above events it could be safely concluded that the above project had been started after coming in to force of the GST w.e.f. 01.07.2017. It is also clear that the draw of lots for allotment was held on 27.10.2017. The first agreement between the buyer and the Respondent was executed on 08.11.2017. Therefore, it was apparent that the Applicant No. 1 had applied for allotment and was allotted the above flat after coming in to force of the GST w.e.f. 01.07.2017. Since the above project was not under execution in the pre-GST period i.e. before 01.07.2017 therefore, no comparison could be made between the ITC which was unavailable to the Respondent before 01.07.2017 and after 01.07.2017 to determine whether the Respondent had benefitted from additional availability of ITC or not.
Thus, it is established that there had been no additional benefit of ITC to the Respondent and hence he was not required to pass on its benefit to the above Applicant No.1 by reducing the price of the flat. The Applicant No. 1 could have availed the above benefit only if the above project was under execution before coming in to force of the GST as the Respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date. Since there is no basis for comparison of ITC available before and after 01.07.2017, the Respondent was not required to recalibrate the price of the flat due to additional benefit of ITC. Hence, the allegations of the Applicant No.1 made in this behalf are incorrect and therefore, the same cannot be accepted.
It is clear from the Section 171 (1) of the CGST Act, 2017, that there should either be reduction in the rate of tax or the benefit of ITC which are required to be passed on to the recipients by commensurate reduction in the price. Since there had been no reduction in the rate of tax or benefit of additional ITC to the Respondent the provisions of the above Section are not attracted in the present case and the allegation of profiteering are not established against the Respondent.
The Respondent had not contravened the provisions of Section 171 (1) of the CGST Act, 2017 - Application dismissed.
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2020 (12) TMI 748 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification for supply of services - waste collection, segregation, treatment, transportation and disposal services under the service agreements entered with both concessionaries - Exemption under N/N. 11/2017- C.T.(Rate) dated 28th June 2017 or under entry no.3 of the Notification 12/2017-Central Tax (rate) dated 28.06.2017? - HELD THAT:- The words of the entry at S.No.3 of the Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 are very clear in that the class of service providers is clearly mentioned. If the intention of the legislature is to exempt ‘Pure Services by way of any activity entrusted to Panchayat/ Municipality under the Article 243 G /243 W of the Constitution’, then the class of recipients will not be mentioned in the description as is available in certain entries of the said Notification(entry No. 23/3 (v), for example). Again if the intention of the legislature is to tax/exempt a supply when made by a Sub-Contractor, such intention is explicitly stated as available in entry 3(ix) of Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 as amended.
Thus, it is a well settled position that the exemption notification must be interpreted on their own wordings
In the case at hand, the entry at Sl.No. 3 is explicit in its application in as much as the class of recipient and the type of activities are mentioned. On plain reading of the said entry, it is specified that only services provided to Central Government, State Government or union territory or local authority or a Governmental authority will be exempted, which is not the case in hand. Therefore the supply made by the applicant under the Service Agreement is not eligible for exemption in terms of entry No.3 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017.
The supply of services by the applicant relating to waste collection, segregation, treatment, transportation and disposal services under the Service Agreements entered with both concessionaries are classified under SAC 9994 in terms of Notification No. 11/2017 C.T.-(Rate) dated 28.06.2017 - The activity undertaken by the applicant under the Service Agreements entered with both concessionaries are not exempted from Goods and Services Tax in terms of entry no.3 of the Notification 12/2017- Central Tax (Rate) dated 28.06.2017.
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2020 (12) TMI 746 - ALLAHABAD HIGH COURT
Classification of goods in the e-tender procurement - contention is that the procurement product would fall under Chapter 84 of the GST Tariff of India declared by the GST Council and HSN Code 84148030 is relevant for "Turbo charger", or the Procurement Product, which is chargeable at 18% GST - Validity of “Public Procurement” (Preference to Make in India) Order' 2017 - contention of the learned senior counsel for the petitioner is that a comprehensive reading of the Make in India policy; circular issued by the Railway Board and the tender document indicates that the bidders, including the petitioner herein were required to specify the percentage of local content in the material being offered in accordance with the Make in India Policy - HELD THAT:- There is no dispute about the fact that the petitioner is a local manufacturer recognized and included in the list of approved vendors maintained by the respondent nos.1 and 3. The petitioner has annexed a certificate of the product being indegeniously developed along with the tender documents. The opening of the subject tender, in the instant case, may not be possible as the offer period has expired due to the interim order passed by this Court. Further with the subsequent tender for procurement of the product, namely 'Turbo Wheel Impeller Balance Assembly' having been granted to the petitioner, the prayer nos.2 and 3 of the writ petition have been rendered infructuous.
Flaw in the procedure adopted by the Railways in the tendering process - petitioner is aggrieved by the fact that after opening of the financial bids, the ranking of bidders was done on the total price (all inclusive price), which was arrived at by adding base price and GST rate (GST value) - HELD THAT:- The Court cannot examine the details of the terms of the contract which has been entered into by the public bodies or the State. The Courts have inherent limitations on the scope of any such enquiry. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then the Court, cannot act as an appellate Court by substituting its opinion in respect of selection made for entering into such contract.
Whether the classification of HSN Code is integral to the tendering process, i.e., whether it has an impact on the selection of tenderers or the choice of tenderers while ranking them after opening the financial bids? - HELD THAT:- The HSN code (Harmonized System of Nomenclature) is provided for each product/service by GST Council to specify the rate at which GST would be applicable. The suppliers have to quote HSN Code of the product to be supplied by them in the tender document, itself. The mentioning of correct HSN Code is necessary to determine the GST rate (GST value) which is to be added in the base price to arrive at the final price offered by the bidder/tenderer - In the case at hand, though the respondent no.6 was ranked as L-1 and the petitioner herein as L-4, but the margin of purchase preference between respondent no.6 (L-1) and petitioner (L-4) became more than 20% on account of mentioning of GST rate at 5% by the respondent no.6 (L-1), which is according to HSN Code of the product in Chapter 86 of GST Tariff. The petitioner herein claims that the correct GST rate should be 18% and the HSN Code which falls under Chapter 84 of GST Tariff would be applicable. Whereas the respondent no.1, Railways in the counter affidavit filed by them did not clarify the correct HSN Code or GST rate of the product and is trying to shift its responsibility by saying that the levy of tax and imposition of penalty for mis-classification of HSN Code is an area of concern of the tax authorities.
If the GST value is to be added in the base price to arrive at the total price of offer for the procurement product in a tender, and is used to determine the interse ranking in the selection process, it is incumbent on the part of the respondent nos.1 and 2 to clarify the HSN Code, i.e. to clear their stand with regard to the applicable GST rate and HSN Code of the “procurement product” - the mentioning of HSN Code in the tender document itself shall resolve all disputes relating to fairness and transperancy in the process of selection of bidder, by providing 'level playing field' to all bidders/tenderers in the true spirit of Article 19(1)(g) of the Constitution of India. For any issue relating to the applicability of correct HSN Code or GST rate, it would then be the duty of respondent nos.1 and 2 to seek clarification from the GST authorities.
Petition disposed off.
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2020 (12) TMI 745 - GAUHATI HIGH COURT
Validity of SCN - petitioner submits that while show-cause notice was issued under Section 74 of the CGST Act, but as per the summary of the order the demand is stated to have been created under Section 73 of the said act - HELD THAT:- In view of the nature of grievance raised in this writ petition, while keeping the preliminary issue of maintainability open, let a notice of motion including notice on interim prayer, returnable on 01.02.2021 be issued.
In view of the projection made by the learned counsel for the petitioner that the disputed tax is being paid in installment, it is provided that till the next returnable date, no coercive action will be taken against the petitioner - List on 01.02.2021.
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2020 (12) TMI 744 - ALLAHABAD HIGH COURT
Maintainability of petition - appealable order - instant petition is filed as there was no GST Tribunal constituted till date - HELD THAT:- Considering the fact that GST Tribunal has not been established till date and the petitioner has deposited the requisite court fee as required under Section 112 of the The Uttar Pradesh Goods and Services Tax Act, 2017, the writ petition is admitted.
Learned counsel for the respondents prays for and is granted four weeks' time to file objections and reply to the objections may be filed within one week thereafter - List thereafter.
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2020 (12) TMI 743 - ALLAHABAD HIGH COURT
Service of demand order - scope of service of the order on the driver of the vehicle - Section 169 of GST Act - HELD THAT:- The admitted fact is that the order was served upon the driver of the vehicle, which is not included in any mode of service as prescribed under Section 169 of the Act.
The order is held to be erroneous and is set aside - It is directed that the Appellate Authority shall hear the appeal of the petitioner in accordance with law and on merits, as expeditiously as possible - petition allowed.
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2020 (12) TMI 742 - ALLAHABAD HIGH COURT
Maintainability of appeal - detention of goods on account of wrong mentioning of the place in the E-Way bill - non-constitution of Tribunal - Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 - HELD THAT:- We fail to understand that why the Tribunal has not been constituted till date although the CGST Act was enacted in the year 2017 and the afore-quoted Removal of Difficulties Order was issued on 03.12.2019. Years have passed but the situation has not changed so far. Prima facie, there is failure on the part of the Government to discharge its statutory function by not constituting the Tribunal and thus denying remedy to dealers. Consequently, they are approaching directly to the High Court under Article 226 of the Constitution of India.
Notice on behalf of newly impleaded respondent Nos.5 and 6 have been accepted today in court by Sri Krishna Agarwal, learned Central Government Standing Counsel on behalf of ASGI. We request learned ASGI to assist the court in this matter.
Put up in the additional cause list on 18.01.2021 for further hearing, along with Writ Tax No.655 of 2018 and connected matters involving question regarding non-constitution of the Tribunal.
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2020 (12) TMI 741 - ALLAHABAD HIGH COURT
Detention of goods alongwith vehicle - detention on the ground that the goods in question were being transported without E-Way Bill - HELD THAT:- We may take note of the fact that implementation of the GST regime has brought about a major reform in the field of indirect taxation and all key aspects starting from registration till filing of the return, raising of e-way bill, filing of the refund claim, passing of an order creating demand of tax and penalty, rectification of the order, etc. are dependant on a technology driven process with regard to which the necessary procedure is provided under the Rules.
The relief claimed in this regard in terms of relief clause (I), would be barred by laches; moreso, in the light of the fact that the petitioner claims to have deposited the entire amount of tax and penalty determined under the said order, and by virtue of the deeming provision under subsection (5) all proceedings in respect of the notice specified under subsection (3) shall be deemed to be concluded.
As regards the prayer for quashing the summary of the order uploaded electronically in FORM GST DRC07 dated 18.9.2020, as under relief clause (II), we may observe that in the event the petitioner has actually made payment of the entire amount due towards tax and penalty referred to in the notice issued under subsection (1) of Section 129, he may submit proof thereof before the authority concerned and apply for rectification/withdrawal of the said order.
Petition dismissed.
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