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Showing 141 to 160 of 168 Records

• 2023 (1) TMI 232 - GUJARAT HIGH COURT
  

  Confiscation of goods alongwith conveyance - sections 129 and 130 of the Goods and Services Tax Act, 2017 - HELD THAT:- As far as prayer for interim relief is concerned regarding release of the goods and vehicle of the petitioner, the same deserves to be considered on the same line and upon imposition of the similar conditions as done in SMIT DIPEN SHAH, M/S LIBERTY PRODUCTS VERSUS STATE OF GUJARAT [2022 (7) TMI 1364 - GUJARAT HIGH COURT] where it was held that While the question raised by the petitioner would require a detailed examination, it could be immediately noticed that the impugned order came to be passed in a quick succession as noticed above, that too without permitting the petitioner to file reply. The hot hurry on the part of the authorities sacrificed the right of the petitioner to reply and in the process, there was evident breach of principles of natural justice to the prejudice to the petitioner.

  As could be seen from the impugned order, the penalty amount is Rs. 3,21,230/-. The fine in lieu of confiscation of goods is demanded to the extent of Rs.64,24,600/- and the tax is demanded of Rs.3,21,230/- - By way of interim relief, it is directed that the respondents shall release the goods and conveyance of the petitioner, confiscated and detained pursuant to the order dated 13.09.2022 passed in FORM GST MOV-06, subject to the conditions imposed.

  Application allowed.

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• 2023 (1) TMI 231 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Exemption from GST - Treated Water obtained from CETP (classifiable under Chapter 2201) - exemption from GST by virtue of SI. No. 99 of the Exemption Notification No. 02/2017- Integrated Tax (Rate), dated 28-6-2017 (as amended) as Water (other than aerated, mineral, purified, distilled, medical, ionic, battery, demineralized and water sold in sealed container) or taxable at 18 per cent by virtue of SI. No. 24 of Schedule - III of Notification No. 01/2017- Integrated Tax (Rate), dated 28-6-2017 (as amended) as Waters, including natural or artificial mineral waters, and aerated waters, not containing added sugar or other sweetening matter nor flavoured (other than Drinking water packed in 20 liters bottles)? - HELD THAT:- The applicant is a company promoted by cluster of textile processing industries for setting up of Common Effluent Treatment Plant to treat and recycled the effluent for Conveyance, Treatment & Disposal of waste water generated from the industries. The applicant received the effluent from such textile units for treatment and supply treated water obtained from ETP to the industries which required for their various processes - the effluent received from industries is passed through various processed in CETP and after carrying out due process treated water obtained from CETP which is suitable for Industrial use as per their requirements.

  The intention of the legislature to exempt the water was very clear that any type of water which is usually consumed/drink by the public at large of this country should not be taxed. To meet such objective GST Council has provided exemption under the Entry No.99 of Not. No. 2/2017-CT (Rate) to Water which is free from all types of impurities supplied in cities and villages across the country either through tap or tanker, water cooler and water tap installed at various places across the country. Whereas aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized and water sold in sealed container is not eligible for exemption from payment of GST under the said entry. This clearly shows the intention of the legislature that any type of water which are being sold in terms of commercial purpose have been kept out of the purview of exemption as provided under entry No. 99 of the Notification.

  It can be concluded that after undergoing out all the process treated water obtained from CETP have micro amount of dissolved minerals and chemical and virtually free from all types of toxic materials. This treated water is used in the various industries viz. Pharmaceuticals, chemicals and leather industries for their manufacturing related process. Looking to the presence of small amount of metal and water obtained after treatment from CETP is covered under 'de-mineralize water'. Hence, we are of the view that the treated water obtained from CETP is not eligible for exemption under Sr. No. 99 of Notification No. 12/2017-CT (Rate) dated 28-6-2017.

  Thus, the Treated Water obtained from CETP (classifiable under Chapter 2201) is taxable at 18 per cent by virtue of SI. No. 24 of Schedule - III of Notification No. 01/2017- Integrated Tax (Rate), dated 28-6-2017 (as amended) as 'Waters, including natural or artificial mineral waters, and aerated waters, not containing added sugar or other sweetening matter nor flavoured (other than Drinking water packed in 20 liters bottles)'.

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• 2023 (1) TMI 230 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
  

  Scope of advance ruling - service recipient - Exemption from GST - manpower supply services of (M/s. Call me services) provided to the government entities - Works Contract Service or composite supplies involving supply of goods - Applicability of N/N. 12/2017 Central Tax (Rate) dated 28.06.2017 - HELD THAT:- On a harmonious reading of the provisions of law, it gets abundantly clear that any person who is registered under GST or desirous of obtaining a registration under GST may apply for an advance ruling and that the question on which an advance ruling is sought for may be with respect to any of the issues referred to in Section 97(2) ibid which are in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.

  The advance ruling mechanism under GST does not envisage giving a ruling to a recipient of supply of goods or services or both about the said supply at supplier end. As per Section 103 of the CGST Act. The advance ruling pronounced by the Authority is binding only on the applicant who has sought for the ruling on any matter referred to in Section 97(2) as well as on the concerned officer, or jurisdictional officer of the applicant. The applicant in the Capacity of recipient of service is not eligible under law to seek a ruling on the taxability of a transaction at supplier's end, received by him. In fact, we as AAR does not have the authority to determine the classification or nature of service supplied by the service provider of the applicant at the supplier end who in this case happens to be M/s Call me services, on an application made by the applicant, the recipient of service.

  The said M/s Call me services, service provider of the applicant is well within its rights to seek an advance ruling from the jurisdictional authority, as to whether the services supplied by them to the applicant is exigible to tax.

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• 2023 (1) TMI 229 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
  

  Classification of goods - rate of tax - civil works for the construction of Kusmunda S&T work and other TMS & Crew rest room at various five locations within 2.8Km length of siding area in connection with construction of rail infrastructure for providing Railways siding at SECL Kusmunda Project, District Korba, Chhattisgarh - S.No. 3 (v)(a) of Notification No. 11/2017 Central Tax(Rate) dated 28.06.2017 as amended, vide Notification 01/2018 Central Tax(Rate) dated 25.01.2018.

  HELD THAT:- In the instant case under consideration, the applicant has furnished a sample copy of letter of acceptance dated 17.1.2020 issued by RITES LIMITED issued to the said third party / firm, for and behalf of SECL in respect of technical offer opened on 11.7.2019. From the submissions as put forth by the applicant and from the said sample letter of acceptance that RITES LIMITED for and on behalf of South Eastern Coalfields Limited, (SECL), Gevra awarded to the said party / firm it is seen that the work being awarded by RITES is the work of Construction of Kusmunda S&T block cabin, East and West Panel buildings for S&T work and other TMS & Crew rest room at various five locations within 2.8Km length of siding area in connection with construction of rail infrastructure for providing Railways siding at SECL Kusmunda Project, District Korba, Chhattisgarh for dispatch of washed and raw coal - SAC 995421 covers 'General Construction services of highways, streets, roads, railways, airfield runways, bridges and tunnels' which by their very nature relates to work of civil engineering and there exists all plausible reasons to link the same to the aforementioned work awarded by RITES LIMITED, intended to be undertaken by the applicant. Therefore, the instant supply in question gets aptly covered under SAC 9954 in general. Accordingly, in the case in hand the basic requirement for eligibility to the said exemption as provided under S.no. 3 (v)(a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended, of getting covered under SAC 9954 stands fulfilled.

  Whether the instant supply is a Composite supply? - HELD THAT:- For the instant supply of Civil works to be undertaken by the applicant to be categorized as composite supply there needs to be supply of goods and services and the same should be natural bundle of supply of both and supplied in conjunction with each other in the ordinary course of business. No such details of supply of goods for the intended civil works is forthcoming from the sample letter of acceptance furnished by the applicant. Thus without substantial evidence of the works contracted/undertaken like materials/ goods to be supplied, related schedules/detailed write-up on the civil works, etc., it is practically impossible for this authority to conclude or for that matter to hold that the works as is forthcoming form the letter of acceptance, undertaken is composite supply per se. Accordingly, this authority on the basis of records furnished and available on record, is not in a position to conclusively hold that the works, as is forthcoming form the letter of acceptance issued by RITES LIMITED, intended to be undertaken by the applicant qualifies being treated as Composite supply as per Section 2 (30) of CGST Act, 2017.

  Exemption as provided under S.No. 3(v) (a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended, vide Notification 01/2018 Central Tax (Rate) dated 25.01.2018 - HELD THAT:- It would be appropriate to conclude that the benefit of the entry at SI.no. 3(v)(a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 is amended, vide Notification 01/2018 Central Tax (Rate) dated 25.01.2018 and various other amendments from time to time, lastly amended vide Notification no. 22/2021-Central Tax (Rate) dated 31.12.2021 would be eligible to M/s Agrawal Buildcon, C/o Agrawal Traders, Main Road, Korba, Chhattisgarh, 495677 (GSTIN-22ASSPA1067D1Z7), the applicant, subject to the fact that the works undertaken by them are Composite supply and Works Contract as per Section 2 (119) of the Act and if so the applicable GST would be @ 12% effective from 25.01.2018. In cases other than above the same attracts GST @ 18% under the residual entry at Sr. no. 3 (xii) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended.

  Change on the rate of tax since 1.1.2022 - HELD THAT:- It is seen that there is no change in the rate of GST in such composite supply of works contract as defined in clause (119) of the Central Goods and Services Tax Act, 2017 supplied by way of construction, erection, commissioning, or installation of original works pertaining to railways.

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• 2023 (1) TMI 183 - MADRAS HIGH COURT
  

  Levy of interest and penalty - Input Tax Credit was stated to be erroneously availed without filing form TRAN-1 on the basis of the GSTR 3B - HELD THAT:- Despite the fact that form TRAN-1 has been filed on the strength of the directions/ orders of the Hon'ble Supreme Court, the 2nd Respondent issued a communication on 23.09.2022, thereafter, there has been oral communication requesting the Petitioner to appear for the purpose of adjudicating the show cause notice.

  This Court finds that the show cause notice was issued on the premise that the transition of credit being invalid inasmuch as it was not made through form TRAN-1. However, form TRAN-1 has now been filed on the strength / basis of the direction of the Hon'ble Supreme Court of India. In the circumstances, it is appropriate that impugned show cause notice be kept in abeyance until orders are passed on the claim of transition credit under form TRAN-1 that is now filed.

  This Writ Petition is disposed of. This would not preclude the 2nd Respondent after deciding on the transition credit claimed in Form TRAN-1 to proceed with the show cause notice, if circumstances warrant and pass orders in compliance with the procedures contemplated / prescribed in law.

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• 2023 (1) TMI 182 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
  

  Classification of services - works contract services - rate of tax - works being undertaken by the applicant for construction of new railway siding at Jhanjra Area, ECL Dist. Paschim Bardhaman, West Bengal against order received from M/s. RITES Ltd. - construction of rail infrastructure facilities - applicability of Sl. No. 3(v)(a) or Sl. No.3(xii) of Notification No 11/2017-Central Tax (Rate) dated 28/06/2017, as amended from time to time.

  Whether the work being executed by the applicant can be treated as works contract as defined u/s 2(119) of the GST Act? - HELD THAT:- In the case at hand, the letter of acceptance supra dated 02.03.2021 as furnished by the applicant refers the subject of work as “e-Tender No. 07/OT/ECL-JHANJRA/Civil & P. Way/PKG-III/20 dated 30.06.2020 for the work of Construction of Earthwork in Formation, Major & Minor Bridge, ROB, Drain, P.Way Linking work including supply of Track Ballast, P. Way Fittings, Points & Crossings, Derailing Switches etc., Construction of Service Building including Internal Electrification, Installation, Testing & Commissioning of 140MT In-Motion Weigh Bridge and other allied works etc., (Pkg-III) in connection with construction of New Railway siding at Jhanjra Area, ECL, Dist. Paschim Bardhaman, West Bengal” - On due consideration of the nature of works being undertaken by the applicant as detailed in the scope of work, we are of the opinion that the work is in relation to immovable property and certainly involves transfer of property in goods thereby qualifies to be a ‘works contract’ as defined in clause (119) of section 2 of the GST Act.

  Whether the said work can be considered as ‘original works’? - HELD THAT:- In the instant case the applicant executes construction work in connection of New Railway Sidings at Jhanjha Area of Eastern Coalfield Limited. Thus, we accept the contention of the applicant that the work can be considered as original works as defined in clause 2 (zs) of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017.

  Whether the work can be considered as works contract pertaining to railways? - HELD THAT:- In the case of M/s Steadfast Corporation Ltd, Telengana [2016 (9) TMI 50 - AUTHORITY FOR ADVANCE RULINGS], the applicant proposed to take up the activity of construction of Railway Works including sidings for private companies as well as Indian Railways. The Authority for Advance Rulings (Central Excise, Customs and Service Tax) vide order dated 15.07.2016 held that ‘Construction of railway siding for private parties is exempt under Notification No. 25/2012-ST dated 20.06.2012, as amended vide entry No. 14(a) thereof’ - the work executed by the applicant in connection with construction of New Railway siding at Jhanjra Area, ECL pertains to railways.

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• 2023 (1) TMI 143 - SUPREME COURT
  

  Direction to respondent to completely exempt drugs for treatment of rare diseases from the levy of IGST, CGST, SGT and Custom Duty - direction to respondents to permit import the drugs for treatment of SMA directly without approaching the Centre of Excellence - HELD THAT:- Ultimately it is for the Government to take a policy decision whether to completely exempt drugs for treatment of rare diseases from the levy of IGST, CGST, SGT and Custom Duty. No writ of mandamus can be issued directing the respondent/Union of India to exempt the drugs from payment of any tax or custom duty - No writ of mandamus can be issued directing the respondents to permit import the drugs for treatment of SMA directly without approaching the Centre of Excellence. There may be number of reasons why the drugs are to be cleared by the Centre of Excellence.

  The writ petition stands dismissed.

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• 2023 (1) TMI 142 - JAMMU AND KASHMIR HIGH COURT
  

  Eligible unit for budgetary support - doctrine of promissory estoppel and legitimate expectation - sunset clause prescribed under Excise Exemption Notification, giving an option to existing units to undertake substantial expansion at any date without any limitation - Constitutional Validity of N/N. 10(1)2017-DBA-II/NER dated 5th October 2017 and Notification/SRO 519 and 521 dated 21st December 2017 read with Circular No.1060/9/2017-CX dated 27th November 2017 - HELD THAT:- From perusal of impugned Order dated 28th August 2018, it is vivid that petitioner-unit is not “Eligible Unit”, to be given the benefit that it exhorts to be bestowed under the auspices of the Scheme of 2017. It is clearly mentioned in the impugned order dated 28th August 2018 that petitioner-unit, working under and in terms of Notification of 2002, being Notification no.56/2002, was entitled to the benefits percolating in terms thereof, however, till 9th February 2017 - And insofar as benefits as available under and in terms of Notification/Scheme of 2017 are concerned, petitioner-unit is not entitled to any benefit thereunder as petitioner-unit was not availing any benefit immediately before and/or on 1st day of July 2017. Not only this, petitioner-unit has been unambiguously shown to have commenced its commercial production as on 25th September 2017 and,as such, petitioner-unit is not squarely qualified and covered to have had the benefits as are emanating from the Notification/Scheme of 2017.

  In the present case, impugned Notifications are lucid and eloquent and need not be interpreted or construed in the way and manner the petitioner intends and chooses to and as a result whereof, writ petition qua impugned Notifications is liable to be dismissed.

  It is worthwhile to mention here that exemption notification should not be read liberally construed and beneficiary must fall within the ambit of exemption and fulfil the conditions thereof and if the conditions are not fulfilled, the issue of application of notification does not arise at all by implication. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification - The statutory provisions providing for exemption have to be interpreted in light of the words employed in them and there cannot be any addition or subtraction from the statutory provisions. It is also well settled eligibility clause in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language and therefore, there is a vast difference and distinction between a charging provision in a fiscal status and an exemption notification.

  While considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must forever be present to the mind of the court, while considering the applicability of the doctrine. Doctrine of promissory estoppel must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation - The supersession or revocation of an exemption notification in the “public interest” is an exercise of the statutory power of the State under the law itself.

  In KASINKA TRADING VERSUS UNION OF INDIA [1994 (10) TMI 64 - SUPREME COURT], the Supreme Court has held that the appellants in the said case appear to be under the impression that even if, in the altered market conditions the continuance of exemption may not have been justified, yet, the government was bound to continue it to give extra profit to them. That certainly was not the object with which the notification had been issued. The withdrawal of exemption “in public interest” is a matter of policy and the courts would not bind the Government to its policy decision for all times.

  When the case in hand is looked into and examined in the backdrop of above well settled legal position of law, there is no naysaying that petitioner has failed to establish that its case squarely falls within the impugned notifications and exemptions provided thereunder. As a corollary thereof, both the writ petitions are devoid of any merit and are, thus, dismissed - petition dismissed.

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• 2023 (1) TMI 141 - GUJARAT HIGH COURT
  

  Maintainability of appeal - condonation of period beyond the statutory time period under section 107 of the GST Act - mismatch between GSTR 3B and GSTR 2A - HELD THAT:- Considering the decision of the Hon’ble Apex Court rendered in the case of UNION OF INDIA VERSUS BHARTI AIRTEL LTD. & ORS. [2021 (11) TMI 109 - SUPREME COURT], where the Hon’ble Apex Court has held that Form GSTR-2A is only a facilitator for taking an informed decision while doing self-assessment and also bearing in mind the personal circumstances of the petitioner, this court is allowing this petition permitting him to go to the appellate authority, which shall without taking an objection with regard to the limitation, decide this matter on merits.

  Let an amount of pre-deposit i.e. Rs.2,02,245/- be deposited by the petitioner within a period of two weeks. Once that amount is deposited, he will be entitled to make a request for the release of his bank account, before the appellate authority immediately, which shall be decided within one week.

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• 2023 (1) TMI 140 - HIMACHAL PRADESH HIGH COURT
  

  Levy of GST above the tender amount - whether the tender amount is inclusive of GST / Taxes or is only a Basic Amount - it is submitted that the petitioner was liable to pay not only the bid amount of Rs. 1,61,74,260/- but also liable to pay 18% GST over the same - HELD THAT:- In order to check the correctness of the petitioner’s claim that the bid amount was not being accepted as such and was auto corrected after calculating 18% GST, we filled Rs.1,61,74,260/- in column No.13 and the same was duly accepted and surprisingly it is this very amount of Rs.1,61,74,260/- which was then reflected in column No.53 which relates to the total amount with all taxes - it is evidently clear that there was no auto generation of the amount at the site after filling in the basic rate. On the other hand, it is absolutely clear that the amount as was entered at Sr. No. 13 was auto reflected at Sr. No.53.

  There is yet another reason for not accepting the plea of the petitioner as the official-respondents along with their reply have placed the price schedule of the other Company namely “The Prince Trading Company”, who too had participated and qualified the e-tendering process wherein the basic rate quoted by it was Rs.1,33,11,111/- and the same is duly reflected at Sr. Nos. 13 as also 53.

  There are no irregularity much less any illegality in the demand raised by the respondents of GST @ 18% on the tender amount of Rs.1,61,74,260/-, as offered by the petitioner - petition dismissed.

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• 2023 (1) TMI 139 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
  

  Classification of services - applicability of GST rate - Works Contract - composite supply - receipt of contract for new construction of CBD railway station, platform, parking, building and all other civil constructions within the boundary of the station - applicability of Entry No.3(v) of Notification No.11/2017- Central Tax (Rate) Dated 28 June 2017 - HELD THAT:- In the instant case the eligibility or otherwise of reduced rate of GST under Notification no. 11/2017 Central Tax (Rate) as amended, provided under S.no. 3(v) ibid, is the subject matter of this proceeding. The aforesaid Notification stands amended vide Notification No. 03/2022-Central Tax (Rate)New Delhi, the 13thJuly, 2022, effective from 18.7.2022.

  In the instant case under consideration, the applicant has furnished the copy of letter of acceptance cum work order dated 31.3.2022 issued by CEO, NRANVP, Raipur for construction of CBD Railway station at Nava Raipur - As SAC 9954 covers construction services we now proceed to analyse the compliance of other vital conditions much essential for being eligible to the reduced rate of tax claimed by the applicant, as stipulated under S.no. 3 (v)(a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended.

  Whether the instant supply is a Composite supply? - HELD THAT:- It is seen that the intended works to be undertaken by the applicant is construction of CBD Railway station. Now for the instant supply of Civil works to be undertaken by the applicant to be categorized as “composite supply” there needs to be supply of goods and services and the same should be a natural bundle of supply of both and supplied in conjunction with each other in the ordinary course of business. No such details of supply of goods for the intended civil works is forthcoming from the letter of acceptance furnished by the applicant. Thus without substantial evidence of the works contracted/undertaken, like materials/ goods to be supplied, related schedules, etc., it is practically impossible for this authority to conclude or for that matter hold that the works undertaken as is forthcoming form the “letter of acceptance cum work order' and the tripartite agreement dated 25.4.2022 furnished by the applicant is ‘composite supply' perse - this authority on the basis of records furnished and available on record, is not in a position to conclusively hold that the works mentioned in the “letter of acceptance cum work order issued by Chief Executive Officer, Nava Raipur Atal Nagar Vikas Pradhikaran supra or tripartite agreement, intended to be undertaken by the applicant qualifies being treated as 'Composite supply' as per Section 2 (30) of CGST Act, 2017.

  The work undertaken by the applicant as is forthcoming from the same, it is seen that the work awarded to the applicant are Original work' as defined in the notification. Further, on a thorough look into the text of the claimed exemption as provided under S.no. 3 (v)(a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended, vide Notification 01/2018 Central Tax (Rate) dated 25.01.2018. we find that the entry at 3(v)(a) is specific to the composite supply of works contract pertaining to railways including monorail and metro.

  It would be appropriate to conclude that till 17.7.2022, the applicability of Sl.no. 3 (v)(a) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended to the applicant, M/s Shreejikrupa Project Limited, H.No. 289, behind C.S.E.B Office, Sunder Nagar, Raipur-492001. Chhattisgarh GST1N-22AALCS6689K1ZNfor the said work, is subject to the fact that apart from the other stipulated conditions therein as discussed, the works undertaken by them satisfy the condition of it being “Composite supply” as defined under Section 2 (30) of the CGST Act, 2017, the same are 'Works Contract' as per Section 2 (119) of the Act and that the same “pertain to railways” - As the applicant has been found wanting in compliance of the stipulations provided under Sr. no. 3(v) (a) of Notification no. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended including the condition that the work “pertains to railway”, the said construction works attract GST @ 18% under the residual entry at Sr. no. 3 (xii) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended.

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• 2023 (1) TMI 88 - RAJASTHAN HIGH COURT
  

  Levy of Interest and penalty - delayed payment of tax - petitioner has challenged the final assessment order on the ground of non-adherence to the principles of natural justice, violation of mandatory requirement of Section 75 of the CGST Act and numerous other grounds - non-application of mind - violation of principles of natural justice - HELD THAT:- It is clear on the face of the record that the officer did not consider the detailed reply submitted on behalf of the petitioner while passing the impugned orders which are sketchy and non-speaking on the face of it. Thus, the impugned orders, apart from suffering from the vice of non-application of mind to the reply of the party, also run in violation of mandatory requirement of Section 75(6) of the CGST Act - Hence, the impugned orders cannot be sustained and are hereby quashed and set aside.

  The petitioner’s representative shall appear before the Joint Commissioner on 22.12.2022, whereafter, opportunity of hearing shall be provided and fresh order shall be passed assigning proper reasons - Petition allowed by way of remand.

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• 2023 (1) TMI 87 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Construction services or not - whether the project which is currently under construction by the applicant shall be regarded as a Residential Real Estate Project (RREP) or Real Estate Project (REP)? - Whether the project consisting residential Apartment eligible for GST Rate 1% being an affordable residential apartment without ITC, 5% without ITC for other than residential affordable apartment and 5% without ITC for commercial shops? - HELD THAT:- The applicant is developing buildings consisting of apartments and commercial shops for the purpose of selling. The instant project, shall be treated as RREP if the carpet area of the commercial apartments is not more than 15 per cent. of the total carpet area of all the apartments in the REP. Here, we find that instant project having commercial shop carpet area less than 15% of total carpet area considering the submission of the applicant. As a result, the instant project falls under the category of Residential Real Estate Project (RREP).

  Applicable GST rate on affordable residential apartment, other residential apartment and commercial shop - HELD THAT:- The consideration of Rs. 45 Lacs as mentioned in the Notification in case of Affordable Residential Apartment is the gross amount which includes all types of charges collected from the potential buyer except Stamp Duty payable. We find that the applicant have not submitted any legal documents to ascertain that the which types of charges makes exact gross amount of the affordable residential flat which are collected from the customer. The applicant has not submitted the types of heads under which consideration have been received and make Gross Amount of the affordable Residential Flat less than 45 lacs - Similarly, the applicant have not submitted any legal documents in support of exact carpet area and consideration recovered from the customer in respect of other than affordable residential flat and commercial shops.

  The applicant have not submitted sufficient documents to decide the Ruling on the question sought for, therefore we are not inclined to pronounce the Ruling in absence of proper documents. The ruling can be pronounced on the basis of proper documents in support of the questions and not on simple facts and assumptions.

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• 2023 (1) TMI 86 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Maintainability of Advance Ruling application - Levy of GST - Classification of services - rate of GST - sale of Land / Industrial Plot - legal basis of non applicability - Input tax credit - HELD THAT:- The transaction shall be out of GST net only if the activity is exclusively dealing with transfer of title or transfer of ownership of land, which is immovable property or earth. Here the substance of agreement between the parties is important. Where the nature of activity is that of ONLY sale of immoveable property of plot, it is excluded from GST levy.

  It has been observed from the submission that the applicant is in dilemma whether they will sale the whole land as purchased as such or will sale the individual plots of different sizes. The applicant is not sure about the proposed nature of activities to be undertaken by them. We find that to sale land as such i.e. barren land and to sale of individual plot with developed facilities are two distinct activities and attract different provisions of GST Act and Rules. The nature of taxability purely depends upon the type of activity proposed to be undertaken by the applicant - the applicant have not submitted any such documents by which it can be ascertain what types of activities have been permitted by the competent Authority to be carried out on the plot. The applicant has also failed to submit details of amenities to be provided in the plotted scheme and documents in support of it. The applicant also not disclosed/ submitted whether they proposed to construct any residential/ commercial construction on the plot or otherwise.

  In absence of specific activities proposed to be carried out by the applicant and lack of sufficient documents, the application does not have any locus standii - the application filed for Advance Ruling is not maintainable.

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• 2023 (1) TMI 85 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Classification of supply - principal supply - Composite Supply or Mixed Supply - rate of GST - supply of Pencils Sharpener along with Pencils - supply of sharpener having a nominal value along with the kit - supply of Sharpener along with the kit having a nominal value will have an impact on rate of tax or not - HELD THAT:- The applicant supplies Doms Al Pencil. Doms Smart Kit and Doms My First Pencil Kit do not get covered under the category of 'composite supply' - the applicant supplies of Doms Al Pencil, Doms Smart Kit and Doms My First Pencil Kit satisfied all the conditions of mix supply. Further, we observed that the illustration given under the definition of Mix supply is similar to all types of the supplies of applicant. Therefore, we hold that all the three types of supply covers under the category of 'mixed supply' as defined under Section 2(74) of CGST Act, 2017.

  A mixed supply containing more than two supplies shall be treated as a supply of that particular supply which attracts the higher rate of tax in the mix supply. We hold that the applicant is required to use the HSN code of the particular supply which attracts higher rate of tax among all the taxable supplies containing in a pack/box.

  The applicant in their addition submission has referred the General Interpretation of Rules of Custom Tariff Act, 1975 and argued that as per the GIR the classification of the pack/box containing multiple of goods will be decided by the essential characteristics of the goods containing in the packet - We find that the argument of the applicant does not hold much water as the present application is filed by the applicant for deciding the nature of supply and not for deciding the classification of all the taxable supplies containing in the box/pack. The applicant all the supplies are covered under the category of Mixed supply hence as per the provision of mixed supply, the supply which attracts higher rate of tax shall the applicable rate for the supply.

  The applicant all the supplies i.e. kit if containing Sharpener and if tax rate of that particular sharpener is highest among all the product containing in that particular supply i.e. kit, in such case the applicant is liable to pay the highest tax rate and HSN code is to be used of that particular supply having highest rate.

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• 2023 (1) TMI 84 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Classification of services - food and beverages prepared and supplied by the Applicant to its customers whether consumed in the restaurant or by way of takeaway qualifies - readily available food and beverages (not prepared in the restaurant) sold over the counter by the Applicant to the customer whether consumed in the restaurant or by way of takeaway - restaurant services or not? - classifiable under SAC '996331 or not - input tax credit as per Sr. No. 7(ii) of Notification No. 11/2017-Central Tax (Rate) dated June 28, 2017, read with Sr. No. 7(ii) of Notification No. 11/2017-State Tax (Rate) dated June 30, 2017?

  HELD THAT:- The food and beverages prepared/cooked in the restaurant and supplied by the Applicant to its customers either consumed in the restaurant or by way of takeaway qualifies as 'restaurant services. The restaurant service is classifiable under SAC '996331: Services provided by restaurants, cafes and similar eating facilities including takeaway services, room services and door delivery of food' - the restaurant service is leviable tax rate of GST @ 5% with no input tax credit as per Sr. No. 7(ii) of Notification No.11/2017 - Central Tax (Rate) dated June 28. 2017, read with Sr. No. 7(ii) of Notification No. 11/2017 - State Tax (Rate) dated June 30, 2017.

  The readily available food items (not prepared/cooked in the restaurant) sold over the counter by the Applicant to the customer whether consumed in the restaurant or by way of takeaway does not qualify as 'restaurant services' instead of falls under supply of goods which is liable to applicable rate of GST Tax - The readily available food and beverages (not prepared in the restaurant) sold over the counter by the Applicant is supply of goods which is liable to applicable rate of GST Tax and does not qualify as restaurant services.

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• 2023 (1) TMI 83 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Exemption from GST - activity of Afforestation, which includes the plantation of mangroves - Charitable activities or not - Sr. No.1 of Notification NO.12/2017-CT (Rate) - Whether the applicant is required to be get registered under GST? - HELD THAT:- The applicant has undertaken the project of afforestation which include plantation of Mangroves covering 200 hectare area along coastal belt of Jambusar taluka, Bharuch district, Gujarat. Mangroves are one of the earth's most important ecosystems and serve many critical functions: buffering coasts from storm surges, preventing coastal erosion, filtering water, storing carbon, serving as a vital habitat for a great number of species, and providing food and livelihoods for local communities. Planning Commission, New Delhi has published report of the Task Force on “ISLANDS, CORAL REFS, MANGROVES & WETLANDS IN ENVIORNMENT & FORESTS” For the Eleventh Five Year Plan 2007-2012. Chapter-3 of the report has elaborated causes of depletion of Mangroves, benefits of plantation of Mangroves on Environment, Economic and social aspect.

  The benefits of plantation of Mangroves along coastal and looking to the impact of plantation of mangrove on environment, social and economic, it is held that the activities of plantation of mangrove carried out by the applicant are covered under point (iv) of Charitable under clause 2 (r) of Notification No. 12/2017-CT (R) dated 28-6-2017 as amended.

  Determination whether activity of the applicant covered under Supply defined under Section 7 of CGST Act, 2017 - HELD THAT:- The applicant service of afforestation which include plantation of Mangroves along with the coastline to protect the environment and up liftmen of socially and economically marginalized people as discussed in the above paras cannot be considered a business activity. The said activity have not been done for the commercial benefit but it is being carried out for social and economic benefit of the marginalized people and to protect the environment.

  The applicant activity of plantation of Mangrove are covered under Charitable Activity as defined under Clause 2( r) of the Notification No. 12/2017-CT (Rate) dated 28-6-2017. The applicant is registered under section 12AA of the Income-tax Act, 1961 (43 of 1961) as Charitable Trust, thus service of plantation of Mangroves by the applicant is eligible for exemption from the payment of GST and covers under entry No. 1 of the Notification No. 12/2017-CT (Rate) dated 28-6-2017 - the applicant service of plantation of mangrove is covered under point (iv) of Charitable Activity define under clause 2 (r) of Notification No. 12/2017-CT (R) dated 28-6-2017 as amended and is eligible for exemption from payment GST in terms of entry No. 1 of Not. No. 12/2017-CT (Rate) dated 28-6-2017.

  The applicant service does not covered under supply as defined under Section 7 of CGST Act, 2017, therefore, applicant is not liable for registration under the provisions of Section 22(1) of the CGST Act, 2017.

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• 2023 (1) TMI 82 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
  

  Maintainability of Advance Ruling application - requisite fees not paid - Classification of goods - rate of GST - HSN code - fly ash brick - fly ash bricks having fly ash content around 60% - fly ash bricks having fly ash content less than 90% - HELD THAT:- It appears that the applicant has filed this application without the payment of requisite fees and the instant application is, therefore, found liable to be rejected. Accordingly the applicant has been communicated and asked to furnish a written submission by 02/11/2022 through e-mail. However, no clarification from the end of the applicant has been furnished by the specified date.

  As the application has been filed without making payment of requisite fee referred to in sub-section (1) of section 97 of the GST Act read with sub-rule (4) of rule 104 of the Central Goods and Services Tax Rules, 2017 and West Bengal Goods and Services Tax Rules, 2017 and as the applicant fails to furnish any clarification in this regard, the application is rejected.

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• 2023 (1) TMI 81 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
  

  Classification of supply - distinct supply or composite supply - naturally bundled services or not - amounts charged by the applicant for right to use of car/two wheeler vehicle parking space along with the sale of under constructed apartments to its prospective buyers is to be treated as a composite supply of construction of residential apartment services - rate of tax applicable on such charges collected by the applicant from its prospective customers - amounts collected for right to use of car parking space will also be treated as a NON GST supply - taxability would change if such charges for right to use of car parking space is collected after the sale of the apartment has been done i.e. the customer had not opted for the car parking space at the time of purchase of the under constructed unit, but had sought for the same after the unit was handed over to the customer after receipt of the completion certificate.

  HELD THAT:- In the instant case, the applicant enters into agreement with prospective buyers for sale of residential apartment. Such agreement can be made prior to issuance of completion certificate or post-issuance of the same. In course of personal hearing, the authorised advocate of the applicant furnishes copies of some allotment letter and tax invoices issued by the applicant. Sample copies of invoices issued by the applicant for sale of apartment post receipt of completion certificate have also been furnished by the authorised advocate.

  Construction services under Heading 9954 specified at items (i), (ia), (ib), (ic) and (id) against serial number 3 of Notification 11/2017-Central Tax (Rate) dated 28.06.2017, as amended vide Notification No. 03/2019-Central Tax (Rate) dated 29.03.2019, attract tax @ 1.5% and @ 7.5%, as the case may be w.e.f. 01.04.2019. Further, construction services under Heading 9954 specified at items (ie) and (if) against the aforesaid serial number attract tax @ 12% and @ 18% respectively - In the instant case, the applicant enters into agreement with prospective buyers for sale of residential apartment. Such agreement can be made prior to issuance of completion certificate or post-issuance of the same.

  Admittedly, it is at the choice of the buyers whether they would avail the facility or not. Further, an owner of a flat may avail this facility even after the issuance of completion certificate of the project. Furthermore, if there remains any un-allotted car parking space after allocation among the intending buyers, it is offered to allottees desiring additional car parking space. The fact delineates that such supply is altogether a separate service and cannot be treated as naturally bundled with the construction services.

  The applicant draws attention to the press release of the 47th GST Council meeting wherein clarification has been brought for GST applicability on preferential location charges in case of lease of plot - It appears that the clarification has been given in respect of location charges or preferential location charges (PLC) collected in addition to the lease premium for long term lease of land. However, here the issue is related to construction of residential project and right to use of car parking space which is different from the subject matter, as clarified in the circular.

  Supply of services for right to use of car parking space is a separate supply and not to be construed as a composite supply of construction of residential apartment services - In the instant case, supply of services for right to use of car parking space would be taxable @ 18% - tax is payable on supply of services for right to use of car parking space.

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• 2023 (1) TMI 80 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
  

  Exemption from GST - Healthcare services - regular medical monitoring along with other logistic support as provided by the applicant to senior citizens at their door step - classification of services - rate of tax - HELD THAT:- The applicant is found to be engaged in providing services to its enrolled members under two limbs. The first one, which is against a consolidated package amount, comprises inter alia of care manager visit for medical check-up, general physician home visit and home delivery of medicine. The other part also covers services by general physicians, nurses and care managers for which the applicant charges separately. The aforesaid services may get covered under health care services as defined in Para 2 (zg) of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017. However, supply by way of health care services qualifies for exemption under serial number 74 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 if the same is provided by a clinical establishment, an authorised medical practitioner or para-medics - Admittedly, the applicant doesn’t fall under any of the aforesaid categories of suppliers and the services provided by the applicant, therefore, fail to qualify as exempted service.

  Rate of tax on the instant supply of services - HELD THAT:- The applicant provides services for accompanying members for essential & social outings, accompanying member to the Bank & Post Office, organising social gathering and entertainment programmes etc. Thus, the services provided by the applicant can be termed as human health and social care services and is taxable @ 18% vide serial number 31 of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 [corresponding West Bengal State Notification No.1135 F.T. dated 28.06.2017], as amended.

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