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GST - Case Laws
Showing 81 to 100 of 1965 Records
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2021 (12) TMI 724 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of goods - CNG Dispenser manufactured and supplied by the Applicant - covered in SL. No. 422, Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28 June 2017 as amended and corresponding notification issued under integrated GST and State GST Act - HELD THAT:- The impugned product causes the CNG to flow from the filling station to the CNG Tank of the vehicle. Thus there is a flow of gas in one particular direction and it is the CNG Dispenser which is causing the CNG to move from one place to another. Thus the impugned product is also functioning as a pump in view of the definitions. It can therefore be said that CNG fuel dispensers are used for distribution of Compressed Natural Gas (CNG) which is a fuel and as per the submissions of the applicant, they are equipped with electronic counters of quantity and price of pumping.
Chapter Heading 8413 11 of the GST Tariff covers “Pumps for dispensing fuel or lubricants of the type used in filling stations or garages”. The impugned product is designed to dispense fuel, in this case CNG, which are used in filling stations, and acts as a pump which causes CNG, a gas, to move from one place to another. Thus the impugned product can be said to be a type of pump which are used for dispensing fuel and are therefore classifiable under HSN 8413 11 91 of the GST Tariff - Section XVI of the GST Tariff covers Chapter Heading 84 and 85 of the GST Tariff. Note 1 (m) of the Section Notes states that, articles of Chapter 90 of the GST Tariff are not covered under Section XVI i.e. Chapters 84 and 85 of the GST Tariff. Further primary function of the impugned product is to dispense CNG Fuel and has an inbuilt mechanism to constantly measure and regulate the mass of Gas being transferred to the vehicle.
The impugned product is covered under Chapter Heading 8413.11 of the GST Tariff, it is not covered under in SL. No. 422, Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28 June 2017 as amended as the impugned product cannot be classified under Chapter 90.32 of the GST Tariff.
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2021 (12) TMI 723 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of goods - Rava Idli Mix - classified under chapter 21 with HSN 2106 9090 or not - HELD THAT:- The Tariff headings from 1101 to 1104 covers products of milling of specific cereals listed in Column(1) of the table, with a defined starch and ash content, and having a particular size/texture. In the instant case it is an admitted fact that the impugned product is manufactured by mixing the flours of certain cereals and pulses, the details of which have not been disclosed by the applicant, and hence it is a mixture and neither tallies with the content at column (1) of the above table nor meet the specific requirement of starch and ash content. Thus the compliance requirement is not fulfilled and hence the impugned product does not merit the classification under tariff headings from 1101 to 1104. Also the Tariff heading 1105 covers FLOUR, MEAL, POWDER, FLAKES, GRANULES AND PELLETS OF POTATOES, which is not the case with the impugned product.
It is clear that Tariff heading 1106 covers flour, meal and powder of individual raw materials of either leguminous vegetables(of heading 0713) or roots or tubers(of heading 0714) or of products of Chapter 8. Like other tariff headings in the Chapter, tariff heading 1106 also covers products of individual raw material and not mixtures. “Rava Idli mix” is admittedly a mixture of flour of pulses, cereals and other ingredients resulting in a different product. Thus the impugned product does not get covered under this tariff heading i.e. 1106.
In the instant case the impugned product is admittedly a mixture and does not give the character of either of the constituent flour but altogether a different new product with the different character as “Rava Idli Mix”. Therefore the impugned product is rightly classifiable under Rule 3(a) supra and hence Rule 3(b) is not applicable. Further as the impugned product is covered under rule 3(a), there is no need to look into rule 3(c) - the impugned product “Rava Idli Mix” merits classification under tariff heading 2106 and attract the GST rate of 18%, in terms of entry number 23 of schedule-III to the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 which covers all kinds of food mixes including instant food mixes.
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2021 (12) TMI 722 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Benefit of exemption from GST - Services of ‘Commission Agent' for rice millers and traders - Supply of services which pertains to selling of agricultural produce as per APMC Act - Is there any special case where the applicant has to collect GST on the Service provided (Branded and unbranded)? - paragraph 2 (d) of Notification No. 12/2017 - Central Tax (Rate) dated 28-6-2017 - HELD THAT:- It is an admitted fact that the activity carried out by the applicant is Rice canvassing commission agent for Rice millers and traders and selling of Agricultural Produce (Rice) as per the Agricultural Produce Marketing Committee Act (APMC Act) of the State.
In the instant case, the applicant is engaged in providing the services of ‘Commission Agent' for rice millers and traders, where in applicant is of the opinion that the said transaction falls under entry at Si No. 54 of the Notification No12/2017-C.T. (Rate), dated 28.06.2017, and exempted from levy of GST. Clauses (a) to (f) of S1 No. 54 cover the services relating to agricultural operations, supply of farm labour, processing of agricultural produce, leasing of agro machinery and land, services relating to agricultural produce and agricultural extension services. Commission agent services do not fall in any of the said clauses, and the same is also not claimed by the applicant.
In the instant case the product viz., rice is a product of milling process involving de-husking, steaming, de-browning, polishing, sorting etc. of paddy, which is a produce out of cultivation of plants. Thus, both rice and paddy are produce out of cultivation of plants. But rice and paddy are not the same as rice is the outcome of milling process of paddy. While rice is readily consumable, paddy when subjected to milling processes yield rice, husk and rice barn. Milling process is not normally done by the paddy producer or cultivator, but is undertaken by the millers. Milling process also changes the essential characteristics of the produce from paddy to rice, which are both distinctly identifiable and separately marketable commodities. Thus, the criteria (ii), and (iv) above are not satisfied in the instant case, in as much as the processing is not done by the cultivator or the producer and the essential character of the produce has also undergone change. Therefore, rice cannot be treated as agricultural produce in terms of para 2(d) of the said Notification, and the commission agent services for sale or purchase of rice does not fall in the ambit of SI.No. 54 of the Notification 11/2017-CT(Rate) dtd 28.06.2017 and therefore not eligible for any exemption from levy of GST.
The services by a commission agent should be directly linked to the services relating to the cultivation and this is made amply clear by the use of the words “by way of which links the cultivation process and the marketing process. The applicant is not assisting the cultivators of paddy, instead is assisting the manufacturers of rice/rice millers and traders, and hence the link is not established in this case. Hence the activity of the applicant is not covered under clause (g) of Entry No.54 of Notification No.12/2017- CT (rate) dated 28.06.2021 and hence is not exempted - the activity of the applicant in the instant case viz., the activity of canvassing for Rice as 'Commission Agent' is covered under SAC 9961. Further, the applicant is only charging service charges and not issuing sale invoices on behalf of the principals. Hence the activities of Commission Agent by canvassing for Rice by the applicant attracts Central Tax-CGST @ 9% and KGST @ 9% towards marketing of ‘Rice' including 'branded Rice' also.
It is pertinent to note that the applicant is providing the marketing service for Rice millers and traders supplying both branded and unbranded rice on a commission basis, the activities rendered by the applicant is taxable in terms of the provisions of CGST/KGST Act - hence the applicant is required to register in terms of section 22 of CGST Act, 2017 and is also required to discharge -CGST @ 9% and KGST @ 9% for which commission is received.
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2021 (12) TMI 721 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of goods - Marine Engines - HSN Code 8407 and its spare parts exclusively used as part of fishing vessel of heading 8902 - levy of GST on supply of materials and labour charges incurred during the warranty period, free of cost - rate of tax for collection made towards supply of materials and labour charges towards repair of fishing vessels of heading 8902 - puff insulated ice boxes used by fishermen in fishing vessels for reducing spoilage and maintaining good hygiene - marine engine coming under HSN Code 8407 supplied to Defence Department for patrol, flood relief and rescue operations - HELD THAT:- It is an admitted fact that the applicant is classifying marine engines under Customs Tariff Heading 8407 21 00- Outboard motors -Marine Propulsion engines. Further the Fishing vessels, factory ships and other vessels for processing or preserving fishery products fall under Customs Tariff Heading 8902 and is liable to GST at the rate of 5% as per entry at SI.No.247 of Schedule I of Notification No.01/2017-Central Tax (Rate) dated:28.06.2017 - In the instant case, the applicant admitted to be supplying marine engines (HSN 8407 21 00) and spares for fishing vessels (HSN 8902) as parts of the same.
The marine engines and spare parts used for fishing vessels (being part of the fishing vessel) attract 5% GST. If marine engine is supplied for use other than as parts of fishing vessels as stated above, the rate of GST is applicable under the respective Customs Tariff Headings in which they are classified.
Whether GST leviable on supply of materials and labour charges incurred during the warranty period, free of cost? - HELD THAT:- During the warranty period the goods and service have been supplied to customers as free of charge. No separate consideration is charged and received at the time of replacement. This is because consideration for the same has been recovered at the time of supply of principal goods. However, the tax on the same would have been paid at the time of principal supply of goods; as such costs are included in the price of principal goods supplied. Therefore the replacement of the goods and service during the warranty period without consideration does not come under the purview of supply and no GST is leviable in such case.
Rate of tax applicable for collection made towards supply of materials and labour charges towards repair of fishing vessel of heading 8902 - HELD THAT:- Though in the process of maintenance or repair of fishing vessels there is supply of goods/spare parts, there is no transfer of title in the goods/spare parts as such and hence the supply of goods/ spare parts are ancillary to the repair or maintenance of the fishing vessels. Hence the predominant element of the supply is not the transfer of title in goods/spare parts but that of service of repair or maintenance and the supply of goods/spare parts being ancillary/incidental to the activity of repair or maintenance it is appropriately classifiable under Heading 9987-998714 - Maintenance and repair of transport machinery and equipment under the Scheme of Classification of Services notified as Annexure to Notification No.11/2017 Central Tax (Rate) dated 28.06.2017 and is liable to GST at the rate of 18% (9%-CGST+9%-KGST) as per SI.No.25(ii) of the Notification No.11/2017 Central Tax (Rate) dated 28.06.2017.
Rate of tax on puff insulated ice boxes used by fishermen in fishing vessels for reducing spoilage and maintaining good hygiene - HELD THAT:- The puff insulated ice boxes are appropriately classifiable under Customs Tariff Heading 3923 10 30 - Articles for the conveyance or packing of goods, made of plastics - Boxes, cases, crates and similar articles - Insulated ware. The said articles falling under Customs Tariff Head 3923 are liable to GST at the rate of 18% [9% -CGST +9%-KGST] as per entry at Sl.No.108 of Schedule III of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017. The ice box is used in the fishing vessels for storage of fish to reduce spoilage and to maintain freshness of fish during conveyance. The product cannot be considered as a part of fishing vessel falling under Customs Tariff Heading 8902 and hence is not eligible for the concessional rate of GST as per entry at Sl.No.252 of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.
Rate of tax on marine engine coming under HSN Code 8407 supplied to Defence Department for patrol, flood relief and rescue operations - HELD THAT:- The marine engines are supplied for use as part of vessels used by the Defence and other agencies for patrol, relief and rescue operations fall under Customs Tariff Heading 8906-Other vessels including warships and lifeboats other than rowing boats. As per entry at Sl.No.252 of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017 parts of goods of heading 8901,8902, 8904, 8905, 8906, 8907 falling under any chapter of the Customs Tariff attracts GST at the rate of 5%. Therefore, if the marine engines are supplied for use as part of vessel falling under Customs Tariff Heading 8906, which are used by the Department of Defense and other agencies for patrol, relief and rescue operations, then the marine engine as part of such vessel will only attract GST at the rate of 5% as per the said entry.
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2021 (12) TMI 720 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA
Classification of services - hospitality industry services - applicable GST SAC and GST rate - composite supply or a mixed supply - naturally bundled services or not - service exempt vide Notification No.12/ 2017-CT (Rate) dated 28-06-2017 - HELD THAT:- The applicant is providing boarding and lodging facilities and other services which are taxable under CGST Act 2017. The applicant has submitted few sample invoices raised by him towards the services provided by him to AMSL, which shows that he is raising 2 separate invoices, one towards hostel rent and one towards hostel food. Also from the agreement it is seen that the charges are defined separately for accommodation and for food and other facilities. Since the Applicant is raising separate invoices for the services supplied by him to AMSL, there is no provision of 'bundled services’ to AMSL by the applicant, but two separate supply of services.
Since there is no provision of 'bundled services' by the applicant to AMSL, the same is not covered under the definition of 'composite supply.'
Since the consideration received by the applicant is for providing boarding, lodging facilities and such other agreed services, the same may be considered as 'declared tariff as per Notification No. 12/2017- Central Tax (Rate) dated: 28.06.2017.
The service of supply of food provided by the applicant is also covered under the above entry of the and hence attracts GST at 5%.
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2021 (12) TMI 719 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Time limitation for filing appeal - Cancellation of GST registration - taxpayer has not filed the due GSTR-3B returns - whether or not the appeal filed against the order of cancellation to be decided? - HELD THAT:- The appellant has filed returns upto date of cancellation of registration hence, the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case - the registration of appellant may be considered for revocation by the proper officer.
The proper officer is ordered to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest and status of returns - appeal disposed off.
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2021 (12) TMI 661 - MADRAS HIGH COURT
Detention of goods alongwith the vehicle - used/expired e-way bills to evade tax - Section 129 of the Tamil Nadu Goods and Services Tax Act, 2017 - HELD THAT:- The petitioners are in the business of transportation of goods. They have to be careful and cautious while transporting goods. They cannot allow the employer who employs them for transportation of the goods to evade tax. If the goods are being removed in the clandestine manner on the strength either expired e-way bills or forged/fabricated invoice, the petitioners are not expected to transport the goods. At the same time, no useful purpose will be served by allowing the vehicles to be detained any longer as the vehicles will loose their intrinsic value. There is also no evidence to suggest that the respective petitioners conspired with the said M/s.Prime Gold International Private Limited to facilitate evasion of tax.
There shall be an order for releasing the respective vehicles subject to the respective petitioners paying the amounts determined in the impugned orders - Petition disposed off.
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2021 (12) TMI 660 - CALCUTTA HIGH COURT
Violation of principles of natural justice - total non-application of mind by the respondent officer - also it is claimed that petitioner could not give reply to the show cause notice before the date of passing of impugned adjudication order - HELD THAT:- The impugned adjudication order are self- contradictory and in this case there was clear violation of principles of natural justice and the fact that the petitioner could not give reply to the show cause notice before the date of passing of impugned adjudication order, the interest of justice will be served if the impugned order dated 9th July, 2021 under Section 73 of the West Bengal GST Act is set aside and the matter is remanded to the respondent concerned to pass fresh adjudication order on the reply to be filed by the petitioner within two weeks from date against the impugned show cause notice dated 22nd July, 2021.
It is recorded that this Court has not gone into the merits of the impugned adjudication order and it has been set aside solely on the ground of violation of principles of natural justice and officer concerned will consider the case of the petitioner on its own merit and strictly in accordance with law.
Petition disposed off.
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2021 (12) TMI 659 - CALCUTTA HIGH COURT
Detention of vehicles - violation of relevant provision of State GST Act - petitioner submits that the impugned order of the Appellate Authority is further appealable under the statute but now the said forum of Tribunal is not available - HELD THAT:- Since no further Appellate forum is available at present against the impugned order of the Appellate Authority, this writ petition should be admitted and the issues involve in this writ petition require affidavit from the respondents for final adjudication.
So far as the release of the detained vehicle with the goods is concerned, that shall be released by the respondents concerned on condition of making deposit of further amount of tax of ₹ 3,38,400/- determined, within two weeks from the date, and if such amount is deposited with the authority concerned, the vehicle in question along with goods shall be released by the respondent within three days from the date of receipt of such deposit and subject to compliance of other formalities.
List this matter for final hearing after five weeks after vacation.
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2021 (12) TMI 658 - MADRAS HIGH COURT
Violation of principles of natural justice - case of the petitioner is that the respondents have not communicated the respective Assessment orders to the petitioner - HELD THAT:- The notice that has been sent to the petitioner in GST ASNT 14 appears to have been delivered to the petitioner on 05.05.2021. It is a period when the country was reeling under the second wave of Covid-19 a week thereafter, the second lockdown was imposed in Tamil Nadu and few other states - The over all facts and circumstances indicates that the petitioner would not have gained anything by not replying to either the notice in form GST ASMT 14 or by not filing an appeal barring to suffer an adverse order.
Thus use of common portal though intended to facilitate faster service notice of orders and decisions, it is noticed that there are teething problems in the communication of notice system derived under Section 169(1)(d) of the TNGST Act, 2017. Thus, the orders have been passed without a reply from the petitioner. Therefore, to meet the ends of justice, a fresh opportunity can be given to the petitioner to file a reply to the notices.
The cases are remitted back to the respondent to pass a speaking order within a period of forty five days from the date of receipt of a copy of this order - Petition allowed by way of remand.
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2021 (12) TMI 657 - MADRAS HIGH COURT
Validity of SCN - SCN challenged on the ground that there is predetermination - Section 129(3) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The show cause notices details and articulates the case of the respondent. It is for the petitioner to reply to the show cause notices to have the goods cleared. If the goods were really meant to be sent to Karnataka for which the petitioner had allegedly paid IGST amounting to ₹ 38,79,019/- under the provisions of IGST Act, 2017, no useful purpose will be served by quashing the show cause notices by directing the respondents to issue a fresh show cause notices. It would only further delay the clearance of the imported consignments.
These writ petitions are disposed of by giving liberty to the petitioner to file additional representations and reply to the impugned show cause notices immediately.
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2021 (12) TMI 656 - ALLAHABAD HIGH COURT
Tax or not - Royalty payment of tax or not - petitioner urged that the royalty payment is tax and not consideration in the context of the privilege parted by the State allowing the petitioner and others to mine sand - HELD THAT:- Reliance has been placed on a Constitution Bench decision of the Supreme Court in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT], wherein, nature of royalty payment was considered and it was opined to be in the nature of tax.
List after two months.
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2021 (12) TMI 655 - MADRAS HIGH COURT
Detention of goods alongwith vehicle - impugned notice has been issued on the ground that the petitioner had admittedly transferred goods without the goods accompanying E-way Bill - HELD THAT:- The respondent have only issued a notice proposing to impose penalty and tax. It is open to the petitioner to explain the same before the respondents, considering the fact that, the petitioner has also got the vehicle released on payment of the amount on 01.02.2019, there is no merits in the present writ petition.
This writ petition is dismissed with liberty to the petitioner to participate in the said proceeding by filing a reply to the impugned notice dated 24.01.2019 within a period of 30 days from the date of receipt of a copy of this order - Petition dismissed.
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2021 (12) TMI 612 - DELHI HIGH COURT
Constitutional Validity of clause (iv) of the Notification No. 16 / 2021– Central Tax (Rate) dated 18th November, 2021 and clause 1(i) and clause 2(i) of Notification No. 17 / 2021 – Central Tax (Rate) dated 18th November, 2021 - HELD THAT:- Issue notice. Ms.Supriya Juneja, Advocate accepts notice on behalf of respondent no.2. She states that Mr.Aditya Singhla, Advocate, who is to argue the matter, is in personal difficulty. She also prays for some time to obtain instructions.
In the interest of justice, re-notify on 21st December, 2021.
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2021 (12) TMI 611 - APPELLATE AUTHORITY FOR ADVANCE, KARNATAKA
Input tax credit - land filling pit can be considered as ‘Plant and machinery’ or as ‘civil structure’ - whether the Appellant is entitled to avail input tax credit on the construction of land filling pit or is it hit by the restriction laid down in clause (d) of Section 17(5) of the CGST Act? - HELD THAT:- It is an engineered pit in which layers of solid waste are filled, compacted and covered for final disposal. Land filling is the term used to describe the process by which solid waste is placed in the landfill. The purpose of land filling is to bury/alter the chemical composition of the waste so that they do not pose any threat to environment / public health. Landfills are built to concentrate the waste in compacted layers to reduce the volume and monitored for the control of liquid and gaseous effluent in order to protect the environment and human health. It is lined at the bottom to prevent groundwater pollution. Each layer of solid waste is covered with a layer of compacted soil until the capacity of the landfill is reached. It is then covered and sealed. The life span of a landfill ranges from 12 to 40 years.
The definition of the expression “plant and machinery” as given in the Second Explanation to Section 17(5) uses the term ‘means’. As per the principles of interpretation of law laid down by higher judicial forums, a definition which uses the term ‘means’ has to be strictly construed to mean only what is stated therein and nothing more, nothing less. For the land filling pit to be considered a ‘plant’, it has to be either an ‘apparatus’, ‘equipment’ or ‘machinery’ which is fixed to the earth. Foundations and structural supports used to fix such apparatus, equipment and machinery to the earth are also covered within the ambit of the definition of ‘plant and machinery’. The definition also has certain exclusions to make it clear that even if they are fixed to the earth, they will not be considered as ‘plant and machinery’. The use of the word ‘means’ indicates that the definition is hard and fast and no other meaning can be assigned to the expression than what is put down in the definition.
In the second explanation given in Section 17, while providing the meaning of the term plant and machinery, it has been clearly stated that Buildings and Civil Structures shall not be covered under the term Plant. However, while so clarifying, it has been accepted and understood that plant and machinery many a times requires support structure and/or foundation for installation and cannot work otherwise. Thus, civil structures such as foundation and supporting structure for fastening of plant and machinery to earth has been included as part of plant and machinery. However, any other civil structure has clearly been excluded from the definition of ‘plant and machinery’. The land filling pit comes within the ambit of the exclusion and hence is not eligible for input tax credit.
Appeal dismissed.
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2021 (12) TMI 610 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Reverse Charge Mechanism - procurement of renting of immovable property services from Seepz Special Economic Zone Authority (Local Authority) - zero rated supply or not - Notification No. 13/2017 dated 28th June, 2017 read with Notification No. 03/2018 - Central Tax (Rate) dated 25th January 2018? - levy of IGST or CGST and SGST - HELD THAT:- In the instant case, as submitted by the applicant, they are receiving renting of immovable property services from a local authority i.e. SEEPZ SEZ and the applicant is registered under the CGST Act, 2017. Hence the applicant must discharge service tax liability under reverse charge mechanism as per the provisions of the amended Notification No. 10/2017- I.T. (Rate) dated 28.06.2017. The RCM provisions provide that all provisions of the IGST Act shall apply as if the recipient person is liable to pay tax. The subject case satisfies all the conditions of Notification No. 10/2017-I.T. (Rate) dated 28.06.2017 as amended, and therefore as per section 5(3) of IGST Act, 2017, we are of the opinion that, the applicant is liable to pay tax under Reverse Charge Mechanism.
Applicant has cited Notification No. 18/2017- I.T.(Rate) to state that the renting of immovable property services are imported by them and are therefore exempted from IGST. Applicant has cited Section 2 (o) of SEZ Act 2005, which defines the term “Import” and have come to a conclusion that, receiving goods or services by a SEZ Unit from a SEZ Developer of same SEZ or different SEZ tantamounts to import of goods under the SEZ Act, 2005 and since, based on the Lohani Committee report, GST laws were aligned with the SEZ laws in 2018 the benefit of tax free procurement in terms of Notification No 18/ 2017- I.T. (Rate) dated 05.07.2017 is available to them.
The applicant, a SEZ Unit, is situated in an Exclusive Economic Zone and as per the aforesaid definition mentioned above; the term ‘India’ includes an exclusive economic zone. Therefore in the subject case both, the recipient and supplier of services are situated in India. Hence, Notification No. 18/2017 is not applicable in this case. We agree with the submissions of the jurisdictional officer on this issue.
Zero Rated supplies - HELD THAT:- The sub-section 16(2) of IGST Act, 2017 itself says that credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply. Further sub-section 16 (3) is only applicable to “registered person making zero rated supply” i.e. suppliers of Zero Rated Supplies, but here, the applicant is recipient and thus it is not covered under section 16(3). Overall, a harmonious construction of section 5 (3) of IGST Act, 2017 read with relevant notifications and section 16 of IGST Act, 2017 clearly stipulates that applicant is liable to pay tax under Reverse Charge mechanism.
Whether they are required to discharge liability under Reverse Charge Mechanism for procurement of other services? - HELD THAT:- Notification No. 10/2017-I.T. (Rate) dated 28.06.2017- amended by Notification No. 3/2018- IT. (Rate)-dated 25.01.2018, notifies only specific category of services on which tax is payable under reverse charge mechanism. Hence, applicability of the said notification cannot be decided in a general/blanket manner for other services mentioned by the applicant because the “other services” are not enumerated by the applicant - this issue cannot be answered in absence of proper information provided by the applicant.
Under which head tax Applicant will be required to discharge tax, if any, under reverse charge mechanism? - HELD THAT:- The tax will have to be discharged under IGST.
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2021 (12) TMI 609 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of services - Work Contract Services on Construction of Roads - Tax Rate to be charged by the sub-contractor to main contractor - rate of tax of 12% or 18%? - HELD THAT:- In the present case, the works contract i.e. composite contract of construction of roads has been awarded by the Aurangabad Municipal Corporation to M/s J.P. Enterprises (Main contractor) and the said main contractor has awarded part of said contract to the applicant. The applicant is thus a sub-contractor and for the supply undertaken, has issued invoices by charging GST @ 12% - the supply of service under the impugned contract is not yet completed. It is still a work being undertaken by the applicant at the time of filing of the application and therefore satisfies the provisions of Section 95 of the CGST Act. Hence, the subject application cannot be rejected outright on the ground contended by the jurisdictional officer. Hence, the application of the applicant is being considered.
As per Sr. No. 3 (ix) of the notification amended by Not cation 1/2018-Central Tax (Rate) dated 25 January 2018, “Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017 provided by a sub-contractor to the main contractor providing services specified in item (iii) or item (vi) above to the Central Government, State Government, Union territory, a local authority, a Governmental Authority or a Government Entity.” attracts levy of GST at 12%. The jurisdictional officer has stated that, since the activity undertaken by applicant, construction of roads is related to item (iv) of the original notification 11/2017 and hence its does not qualify for tax rate of 12% GST due to the fact that the said Entry No. (iv) is not mentioned in the amended Sr. No. 3(ix). Hence, according to the jurisdictional officer, as the activity undertaken by applicant does not qualify for 12% tax rate, it should attract 18% tax rate i.e. 9% CGST and 9% MGST.”
Similarly, in the case of IN RE: M/S. BUILDING ROADS INFRASTRUCTURE & CONSTRUCTION PRIVATE LIMITED, [2021 (8) TMI 526 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH] held that the ‘works contract’ services pertaining to construction, erection, commissioning and completion of ‘Bridges and Roads’ provided by the applicant as a subcontractor to the Contractors who have been awarded the construction contract pertaining to construction/widening of roads by the Government Entities such as National Highway Authority of India, falls under Serial No 3 (iv) of the Notification No.11/2017 as amended from time to time and chargeable to GST @ 12%.
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2021 (12) TMI 608 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Nature of activity - business or not - activity of the applicant i.e. collecting contributions and spending towards meeting and administrative expenditures only - contributions from the members, recovered for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments - supply or not - doctrine of mutuality - HELD THAT:- In view of the amended Section 7 of the CGST Act, 2017, we find that the applicant society and its members are distinct persons and the contribution received by the applicant, from its members is nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that GST is not leviable on the contribution collected from its members, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received from its members.
According to applicant, there is no commercial consideration involved in the process, just that the funds are collected in a common pool for meeting the expenses for the weekly meetings and other petty expenses incurred in meeting the common objective of betterment of society. According to applicant, the amount being collected from the members is reimbursement of expenses or share of contribution - The common pool is being spent back on the members only. According to applicant, in the absence of two distinct persons and also in absence of consideration, as defined under the Act, contributions received from the members in the Administration Account does not qualify as a Supply within the meaning of the term, as defined under the Act.
The amendment to Section 7 (mentioned above) clearly treats the applicant and its member as two different persons where there is a supply of services from the applicant to its members and thus as per the applicant’s own submission that two different persons have been envisaged in the law to tax a transaction as a supply made for a consideration, in the instant case there is a supply by the applicant to its members and consideration is received in the form of “fees”.
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2021 (12) TMI 607 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of services - activity of surface coating undertaken by the Applicant in the State of Maharashtra on original/new goods received from Customer - classifiable under service accounting code 9988 more specifically under code 998898 as job work activity chargeable to tax at 12% in terms of entry no. 26(id) of Notification 11/2017 Central Tax (Rate) as amended or at 18% in terms of entry no. 26(1v) of Notification no. 11/2017 - HELD THAT:- Since no new product comes into existence after the process conducted by the applicant on the goods supplied by its principals, therefore the process undertaken will come under the purview of job work as defined under Section 2 (68) of the CGST Act, 2017. Thus, the applicant is only a job worker to the OEMs and as a job worker, carries out processes on goods supplied by its principals - the impugned services supplied by the applicant are in the nature of job work. The said services do not fall under entries at items (i), (ia), (ib) and (ic) above. Therefore the subject supply of services will be covered by the residuary entry at item (id) of the said notification, namely, Services by way of job work other than (i), (ia), (ib) and (ic) above.
Hon’ble Supreme court in the case of M/S. MARUTI SUZUKI INDIA LTD. VERSUS COMMNR. OF CENTRAL EXCISE [2015 (3) TMI 784 - SUPREME COURT] has also held that there is a distinction between processing and manufacture and that Electro Deposition (ED) Coating of anti-rust treatment to increase shell life of various component is merely a processing activity and not a complete manufacturing activity.
The impugned services supplied by the applicant are in the nature of job work services, classifiable under Entry at item (id) under heading 9988 of Notification No.11/2017-Central Tax Rate dated 28.06.2017 as amended.
Coating services on old, worn out or used goods received from end users - HELD THAT:- Applicant receives old and worn out goods from its customers who have actually used the said goods and such use has resulted in wear and tear. The applicant has restored the old or damaged goods into good condition and also improved the functionality of the said goods, by the impugned activities. As per section 2 (68) of the CGST Act, 2017 job work means, ‘any treatment or process undertaken by a person on goods belonging to another registered person and the expression “job worker” shall be construed accordingly’. Thus Job work is a processing or working upon raw materials or semi-finished goods supplied to the job worker, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for the afore-mentioned process.
In the subject case, old, worn out cutting tools and components/goods are converted into reusable cutting tools and components /goods. The old worn out cutting tools and components/goods are not a distinct commodity from serviceable cutting tools components/goods, only that they were rendered unusable only because of wear and tear over a period of prolonged use. When the old and worn out goods are repaired, no new commercial commodity comes into being, rather it remains a cutting tool/component but now it can be reused. An example would be of a Television Set which has stopped working due to certain reasons like, failure of a circuit, etc. When such a Television set is taken up for correcting the deficiency in order to make it workable, it cannot be said that the concerned mechanic has manufactured a new Television or has conducted job work which has resulted in the production of a new Television.
The subject activity undertaken on old and worn out goods received from the end users is an activity of repair and squarely falls under SAC 9987 and will attract 18% GST under Entry No. 25(ii) of Notification No. 11/2017 dated 28.06.2017, as amended - the coating services on the old and worn out goods like cutting tools and components is an activity of repair and squarely falls under SAC 9987. The coating services on old and worn out goods supplied by end users are not an activity as outsourced portions of a manufacturing process or a complete outsourced manufacturing process and therefore, the impugned activity does not fall under SAC 998873.
Coating services on new tools received from end users - HELD THAT:- With respect to old, used or worn out goods, the applicant has submitted that the said goods are not sent by the Customers for carrying out any part of the process of manufacturing but instead to restore the functionality of the old and worn out tools and make them reusable for such Customers. Thus it appears that such goods are sent by the end users. The applicant has not submitted details of new goods received from end users, if any, for coating services to be carried out - the semi finished/new/original goods are received only from tool manufacturers and not from end users and therefore we do not take up the issue of “coating services on new tools received from end users for further discussion.
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2021 (12) TMI 606 - SESSIONS COURT, VALSAD
Seeking grant of Regular Bail - fraudulent availment and utilization of input tax credit - section 69 of the CGST Act, 2017 - HELD THAT:- This Court observed that the offences is punishable up to 5 years, compoundable and triable by Court of Magistrate. Admittedly, the complaint against the applicant-accused is yet to be filed. Further, the allegations against the applicant-accused are yet to be established during the trial and trial will take long time. Thus, seeing the quantum of sentence accused is likely to face, gravity of the offence, severity of punishment, the liberty of an individual being involved, the period of custody of the accused, this court is of the considered opinion that the applicant / accused is entitled for concession of regular bail in this case.
The applicant namely, SHRI RAMESHCHANDRA TULSIDAS AGARWAL is ordered to be released on bail in connection with the offence punishable U/s. 132(1)(B) & C of the CGST Act, 2017 on furnishing personal bond of ₹ 15,000/- with one surety like amount to the satisfaction of Ld. Trial Court/ Illaqua Magistrate/concern court - Application allowed.
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