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GST - Case Laws
Showing 41 to 60 of 183 Records
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2019 (11) TMI 1315 - DELHI HIGH COURT
Order passed by the National Anti-Profiteering Authority - Appealable order or not - adjudicating authority or not - Section 107 of the CGST Act - HELD THAT:- The provision under Section 107 (1) which provides for an appeal by the aggrieved party in respect of an order passed by “an Adjudicating Authority”. Section 2 (4) of the CGST Act defines the term “an Adjudicating Authority” to mean any authority, appointed or authorized to pass any order or decision under the Act but does not include several authorities which are specifically enumerated in the said sub-Section.
National Authority for Anti-Profiteering is not one of the authorities which are excluded from the definition of “an Adjudicating Authority”.
List on 25.11.2019.
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2019 (11) TMI 1314 - DELHI HIGH COURT
Provisional attachment - freezing the bank accounts of the petitioner - Non-existing assessee - Risky Exporters - Local Commissioner has tendered in Court the report prepared by her - on perusal of the said report that upon physical verification, the premises in question, was not found in occupation of the petitioner, as claimed by the petitioner - HELD THAT:- We had appointed the Local Commissioner, since the petitioner had categorically asserted – despite being confronted with the submissions of Mr. Aditya Yadav, that the petitioner is very much present at, and running its office from the said address viz. 130, Plot No. 8, Mangalam Paradise Mall, Magalam Palace, Sector-3, Rohini, New Delhi-110085.
Looking to the fact that the petitioner has not approached this Court with clean hands, and the entirety of the situation, including the fact that the petitioner is also claimed to be a ‘Risky Exporter’, we are not inclined to exercise our discretionary jurisdiction in favour of the petitioner.
Petition dismissed.
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2019 (11) TMI 1313 - GUJARAT HIGH COURT
Release of conveyance with the goods - Despite a clear order passed by this court directing the respondents to forthwith release the conveyance together with the goods contained therein subject to the petitioner paying the amount of proposed tax and penalty, the respondents have not released the truck and the goods in question and they are insisting upon payment of fine in lieu of confiscation of goods and conveyance.
HELD THAT:- It appears that the respondents have deliberately flouted the orders of this court - Issue Notice, returnable at 2:30 today.
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2019 (11) TMI 1312 - JHARKHAND HIGH COURT
Filing up of Form GST TRAN-I - transition to GST regime - transitional credits - HELD THAT:- All these writ applications are disposed of with the direction that if the petitioners have already preferred such applications before the Nodal Officer, the same shall be forwarded by the Nodal Officer to the Information Technology Grievances Redressal Committee - if such application has not been preferred by any of the petitioners, they shall prefer the applications for getting the transitional input tax credit by filling up the Form GST TRAN-I and submitting the same to the Nodal Officer, within a period of three weeks from today, and thereafter, the Nodal Officer shall forward the claims of the petitioners to the Information Technology Grievances Redressal Committee, within a further period of four weeks thereafter.
Application disposed off.
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2019 (11) TMI 1311 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of construction services related to purchase of an apartment in the project al “Navkar Darshan” of a Flat - benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the apartment purchased by him, on implementation of GST w.e.f. 01. 07.2017 not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- It is clear from the plain reading of Section 171(1) mentioned above that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST.
It has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 0.14% and during the post-GST period (July-2017 to December-2018), it was 4.08% This confirms that, post-GST. the Respondent has been benefited from additional ITC to the tune of 3 94% (4.08%-0.14%) of his turnover and the same was required to be passed on to the Applicant and the other flat buyers. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as ₹ 5,83,593/- which was availed by the Respondent vide Table- C Supra on the basis of the information supplied by the Respondent, which the Respondent has not challenged and hence the amount of profiteering computed by the DGAP is hereby accepted as correct - Therefore, we take the view that the provisions of Section 171 (1) of the CGST Act, 2017 have been contravened in the present case as the Respondent had been benefited from additional IT in the post-GST regime.
Further, it has been revealed from the record that the Respondent has profiteered an amount of ₹ 5,83,593/- for the period of investigation. Therefore, in view of the above facts this Authority under Rule 133(3)(a) of the CGST Rules, 2017 orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him - The profiteered amount alongwith applicable interest shall be paid by the Respondent within a period of 3 months from the date of this order, failing which the same shall be recovered by the concerned Commissioner CGST/SGST as per the provisions of the CGST/SGST Act, 2017, under the supervision of the DGAP. A Report confirming the action taken on the directions passed vide this order shall be submitted by the concerned Commissioner CGST/SGST within a period of 4 months from the date of this order.
Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the fiats being constructed by him in his Project 'Navkar Darshan' in contravention of the provisions of Section 171 (1) of the CGST Act 2017 and has committed an offence under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section - a SCN be issued to him directing him to explain as to why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) d) of the CGST Rules, 2017 should not be imposed on him.
Application disposed off.
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2019 (11) TMI 1256 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Classification of supply - supply of goods or supply of services - supply of Silver Sand - composite supply - challenge to AAR decision - HELD THAT:- As per the work orders issued by MBL, the Appellant is required to fill in the foundation or plinth by silver sand in layers and consolidate the same. Further the job also involves filling in the compound tank and other lying areas with sand and good earth and consolidating the same by ramming and dressing. The activities undertaken by the Appellant amount to improvement and modification of land future construction. In the circumstances, it is not case of composite supply where principal supply constitutes of sand as argued by the Appellant but a case of transfer of property in goods in course of site preparation construction of Central Correctional Home Baruipur.
There are no infirmity in the ruling pronounced by the West Bengal Authority Advance Ruling in the matter and hence there is no reason to interfere with it - appeal dismissed.
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2019 (11) TMI 1255 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH
Rate of GST - outward supply of “Flavoured Milk” - HELD THAT:- The applicable rate of GST is 18% (9% CGST and 9% SGST) on all goods except the goods specified in the schedules I, II, IV, V, VI of the said Notification - Further, for interpretation of the said notification, the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as “FS to CTA, 1975”) are to be applied.
The applicant opines that flavoured milk is covered in Chapter 4 of FS to CTA, 1974. We examine this aspect. The Section I of FS to CTA, 1975 deals with Live Animals; Animal Products. The Chapter 4, deals goods of “DAIRY PRODUCE; BIRDS' EGGS; NATURAL HONEY; EDIBLE PRODUCTS OF ANIMAL ORIGIN, NOT ELSEWHERE SPECIFIED OR INCLUDED. Therefore, any items/goods are specified or included elsewhere in the Schedule; those items/goods do not fall under Chapter 4.
The applicant stated that flavoured milk is a preparation. Section IV deals with goods of “Prepared food stuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes” and the Chapter 22 deals with items/goods of “Beverages, Spirits and Vinegar”. The tariff item no. 2202 99 30 covers “Beverages containing milk”.
Thus, the 'flavoured milk' is classifiable under tariff item 2202 9930 of the First Schedule to the Customs Tariff Act,1975 as a “beverage containing milk” under HS code 2202. The rate of tax applicable for the said tariff item is 12% GST (6% CGST + 6% SGST) under entry no. 50 of Schedule II of Notification No.1/2017 - Central (Rate) dated 28.06.2017 as amended.
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2019 (11) TMI 1254 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH
Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others’ premises and then sells such threshed and re-dried tobacco leaves to others - service of bundling of tobacco leaves by the service providers and then the bundled leaves are sold to others - service of stripping of tobacco leaves by the service providers without getting them threshed and sold such stripped tobacco leaves to others.
HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly.
As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity “tobacco leaves” shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401.
As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, “Tobacco Leaves” means leaves of tobacco as such or “broken leaves” “Tobacco Leaves stems”. It clearly expresses that the leaves as long as they do not loose their basic character as ‘leaves’, shall be considered as tobacco leaves only. if the leaves are bundled and the same are sold to others, they attract the same rate as well, as the leaves remain the same without loosing their form or shape. But if the leaves are stripped and sold to others, they attract higher Rate of Tax i.e., 28 %, as stripping is nothing but removal of mid rib from the leaves, which is threshing activity conducted manually.
In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers.
What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under ‘Reverse charge’.
What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others’ premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What is the applicable rate of tax if the applicant gets the service of bundling of tobacco leaves by the service providers and then the bundled leaves are sold to others? - Whether bundled or sold separately tobacco leaves attract 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification Central Tax (Rate) dated 28.06.2017? - What is the applicable rate of tax if the applicant gets the service of stripping of tobacco leaves by the service providers without getting them threshed and sold such stripped tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017.
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2019 (11) TMI 1253 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH
Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others’ premises and then sells such threshed and re-dried tobacco leaves to others.
HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly.
The commodity “tobacco leaves” shall be interpreted in the light of the entry 109, Schedule- I of Notification No.1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401 - It is to note that though there are different entries with respect to tobacco there is a specific entry in Schedule I of Notification 1/2017 (CGST Rate) as Tobacco leaves, and for the same the liability was brought under reverse charge mechanism. Hence it is clear that the commodity ‘tobacco leaves’ is distinct from the other entries in this aspect.
As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, “Tobacco Leaves” means leaves of tobacco as such or “broken leaves” “Tobacco Leaves stems”. It clearly expresses that the leaves as long as they do not loose their basic character as ‘leaves’, shall be considered as tobacco leaves only.
In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers.
What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under ‘Reverse charge’.
What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others’ premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.
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2019 (11) TMI 1252 - DELHI HIGH COURT
Unable to upload Form GST TRANS-I - transitional input tax credit - transition to GST regime - benefit of the Circular No.39/13/2018-GST dated 03.04.2018 - HELD THAT:- The nature of reliefs sought in the present petition and the facts disclosed herein are fully covered by the decision of this Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT], wherein the Court had directed the respondents to either open the online portal or to enable the petitioner to file the rectified Form TRAN-1 electronically or accept the same manually.
The factual position in the present case is not any different and thus, the present petition is allowed and the respondents are directed to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept the same manually on or before 09.12.2019.
Respondents are directed to process the petitioner’s claim in accordance with law once the Form GST TRAN–1 is filed - petition allowed.
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2019 (11) TMI 1251 - CALCUTTA HIGH COURT
Filing of Form GST Tran-1 - carry forward credit of eligible duties on stock - vires of rule 117 in Central Goods and Services Tax Rules, 2017 - HELD THAT:- On facts, case of petitioner is that it could not attempt to file GST TRAN –1 form on GST portal because his own system was down. On 9th January, 2018, deadline having expired on 27th December, 2017, petitioner said so to Revenue. Petitioner then has obtained a report, upon forensic examination of his system, having provided password, which report confirms petitioner’s contention. Less said about the instructions, in context of such facts, as being removed from them, the better.
Concerned respondents in Revenue will allow petitioner to file GST TRAN – 1 form to enable him to obtain credit accrued in his favour prior to the transition, on his stock as on 30th June, 2017 - Petition allowed.
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2019 (11) TMI 1250 - DELHI HIGH COURT
Unable to upload Form GST TRANS-I - transitional input tax credit - transition to GST regime - benefit of the Circular No.39/13/2018-GST dated 03.04.2018 - HELD THAT:- The nature of reliefs sought in the present petition and the facts disclosed herein are fully covered by the decision of this Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT], wherein the Court had directed the respondents to either open the online portal or to enable the petitioner to file the rectified Form TRAN-1 electronically or accept the same manually.
The factual position in the present case is not any different and thus, the present petition is allowed and the respondents are directed to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept the same manually on or before 09.12.2019.
Respondents are directed to process the petitioner’s claim in accordance with law once the Form GST TRAN–1 is filed - petition allowed.
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2019 (11) TMI 1249 - DELHI HIGH COURT
Unable to upload Form GST TRANS-I - transitional input tax credit - transition to GST regime - benefit of the Circular No.39/13/2018-GST dated 03.04.2018 - HELD THAT:- The nature of reliefs sought in the present petition and the facts disclosed herein are fully covered by the decision of this Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT], wherein the Court had directed the respondents to either open the online portal or to enable the petitioner to file the rectified Form TRAN-1 electronically or accept the same manually.
The factual position in the present case is not any different and thus, the present petition is allowed and the respondents are directed to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept the same manually on or before 09.12.2019.
Respondents are directed to process the petitioner’s claim in accordance with law once the Form GST TRAN–1 is filed - petition allowed.
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2019 (11) TMI 1248 - DELHI HIGH COURT
Unable to upload Form GST TRANS-I - transitional input tax credit - transition to GST regime - benefit of the Circular No.39/13/2018-GST dated 03.04.2018 - HELD THAT:- The nature of reliefs sought in the present petition and the facts disclosed herein are fully covered by the decision of this Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT], wherein the Court had directed the respondents to either open the online portal or to enable the petitioner to file the rectified Form TRAN-1 electronically or accept the same manually.
The factual position in the present case is not any different and thus, the present petition is allowed and the respondents are directed to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept the same manually on or before 09.12.2019.
Respondents are directed to process the petitioner’s claim in accordance with law once the Form GST TRAN–1 is filed - petition allowed.
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2019 (11) TMI 1247 - DELHI HIGH COURT
Unable to upload Form GST TRANS-I - transitional input tax credit - transition to GST regime - benefit of the Circular No.39/13/2018-GST dated 03.04.2018 - HELD THAT:- The nature of reliefs sought in the present petition and the facts disclosed herein are fully covered by the decision of this Court in M/S. BLUE BIRD PURE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2019 (7) TMI 1102 - DELHI HIGH COURT], wherein the Court had directed the respondents to either open the online portal or to enable the petitioner to file the rectified Form TRAN-1 electronically or accept the same manually.
The factual position in the present case is not any different and thus, the present petition is allowed and the respondents are directed to either open the online portal so as to enable the petitioner to file the Form TRAN-1 electronically, or to accept the same manually on or before 09.12.2019.
Respondents are directed to process the petitioner’s claim in accordance with law once the Form GST TRAN–1 is filed - petition allowed.
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2019 (11) TMI 1246 - ALLAHABAD HIGH COURT
PIL against the GST officers - Doctrine of legitimate expectation - principle against retrospectivity - conduct of an independent, free and fair enquiry against the concerned officers in respect of all refund claims of excess tax (compensation cess) paid prior to the Notification dated 30.9.2019 - inverted tax structure in relation to "Tobacco and manufactured tobacco substitutes" - vires of Rule 117 of CGST Rules
HELD THAT:- In view of the doctrine of legitimate expectation, and the principle against retrospectivity, the Notification dated 30.9.2019, shall necessarily apply prospectivity in respect of the goods notified on 30.09.2019 to restrict only those refund claims which are in respect of accumulated credit of excess tax paid on such notified input supplies after 30.9.2019 - Both the impugned orders dated 04.10.2019 are not in respect of any such accumulated credit of excess tax paid after 30.9.2019 on such notified input supplies - Therefore, there is no infirmity in these orders granting refund, warranting any interference.
Pn individual dispute should not be allowed to be converted into a PIL. It cannot be ruled that this writ petition may be sponsored by some interested persons who are having any grudge against the private respondents. Accordingly, the Public Interest Litigation petition is dismissed with ₹ 5,000/- cost.
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2019 (11) TMI 1245 - HIMACHAL PRADESH HIGH COURT
Unable to upload Form TRANS-I - transitional input tax credit - transition to GST regime - time limitation as provided under Section 117 of the CGST Rules 2017 for availing such credit - HELD THAT:- It is not in dispute that there were glitches in the system which led to filing of petitions before various High Courts of the Country and these Courts have granted the relief to the taxpayers by directing the authorities to open the portal and/or receive the manually filed Forms and/or approach the Nodal Officers appointed by the Government in this regard.
In various judgements, it has been held that GST is a new progressive levy. One of the progressive ideal of GST is to avoid cascading taxes. GST Laws contemplate seamless flow of tax credits on all eligible inputs. The input tax credits in TRAN-1 are the credits legitimately accrued in the GST transition. The due date contemplated under the laws to claim the transitional credit is procedural in nature. Therefore, in view of the GST regime and the IT platform being new, it may not be justifiable to expect the users to back up digital evidences - reliance can be placed in various cases of Madras and Delhi High Courts of M/S. AADINATH INDUSTRIES & ANR. VERSUS UNION OF INDIA & ORS. [2019 (10) TMI 91 - DELHI HIGH COURT], M/S. ARORA & CO. VERSUS UNION OF INDIA & ORS. [2019 (11) TMI 471 - DELHI HIGH COURT] and TARA EXPORTS VERSUS THE UNION OF INDIA, GOODS AND SERVICE TAX COUNCIL, THE PRINCIPAL COMMISSIONER OF CGST AND CENTRAL EXCISE, THE PRINCIPAL SECRETARY/COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE CENTRAL GST OFFICER AND THE ASSISTANT COMMISSIONER, CGST AND CENTRAL EXCISE [2018 (9) TMI 1474 - MADRAS HIGH COURT].
We have no reason to doubt the claim of the petitioner that it had made genuine efforts for filing the returns online, but such attempts failed because of technical glitch. We, however, make it clear that does this Court is not dealing with an issue whether the petitioner is entitled to input credit as claimed by it because that is a matter to be examined by the authorities.
The respondents are directed to permit the petitioner to file TRAN-1 either electronically or manually statutory form(s) TRAN-1 on or before 31.12.2019 - petition allowed.
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2019 (11) TMI 1196 - ALLAHABAD HIGH COURT
Availment of credit pertaining to SAD - filing of revised declaration in FORM G.S.T. T.R.A.N-1 - transition to GST regime - HELD THAT:- It is the admitted position that the writ petitioner has already submitted FORM G.S.T. T.R.A.N-1 on 10th October, 2017, to carry forward the credits available to it as on 30th June, 2017. By a letter dated 28th March, 2019, addressed to the Hon'ble Chairman, Goods and Services Tax Council, Government of India, the writ petitioner requested the Council to consider its case and to allow the writ petitioner to re-submit FORM G.S.T. T.R.A.N-1 within the extended period in order to enable the writ petitioner - company to carry forward the credit of SAD amount of ₹ 22,51,380.21/- in relation to stock of goods lying as on 30th June, 2017, under the transitional provisions of section 140(3) of the Uttar Pradesh Goods & Services Tax Rules, 2017.
Every registered person who has submitted a declaration electronically in FORM G.S.T. T.R.A.N-1 within the period specified in Rule 117 or Rule 118 or Rule 119 or Rule 120 is allowed to revise such declaration once and submit the revised declaration in FORM G.S.T. T.R.A.N-1 electronically on the common portal, "within the period specified in the said rules or such further period as may be extended by the Commissioner in this behalf.” This further period – as may be extended by the Commissioner – which is provided under Rule 120-A, therefore, cannot go beyond the time-frame provided under Rule 117 of the Uttar Pradesh Goods & Services Tax Rules, 2017 - The period of extension has been statutorily circumscribed at 90 days and that too is possible only on the recommendation of the Council.
Petition disposed off.
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2019 (11) TMI 1146 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Liability to pay tax - place of supply of services - export of services or not - Pure agent of not - co-ordination services provided by the company to its affiliates outside India - “Pass Through” expenses charged by the Company to its affiliates located outside India - HELD THAT:- The Agreement entered between the applicant and the PAREXEL International Limited (one of the foreign affiliate of the same group) which is produced as a prototype is verified and found that the applicant is subcontracted a part of the work given to the main affiliate and the applicant performs certain services for and on behalf of the main affiliate on the terms set forth therein. Hence it is clear that the applicant is performing services for and on behalf of the affiliate situated abroad - Further, it can be seen from the submissions made by the applicant that he enters into various agreements on behalf of the sponsor with various investigators and payments are made by the applicant to the investigators. There is no privity of contract between the applicant and the sponsor and the power to enter into agreement with the investigators is derived from the agreement between the applicant and its foreign affiliate which in turn derives the power from the agreement entered between the sponsor and the foreign affiliate. - The various clauses of the agreement show clearly that the applicant is acting as a representative of the sponsor in relation to the supply of services by the Investigators and the payments are made by the applicant.
Nature of services - HELD THAT:- The sponsor has entered into an agreement with the foreign affiliate of the applicant. The foreign affiliate has in turn entered into an agreement with the applicant. The applicant has further entered into an agreement with the investigator. The foreign affiliate is providing services to the sponsor as a CRO and the applicant is providing services to the foreign affiliate also as a CRO. There are two services which are involved in the above transaction, one the supply of drug testing services by the Investigator to the sponsor and the second the supply of CRO services to the foreign affiliate. It is also seen in the sample document provided by the applicant, that even this CRO services is again sub-contracted to one, M/s Ecron Acunova Limited.
It is seen in the agreement that the payment of fees and expenses would be made by the Sponsor to the Institution solely and through the CRO, i.e. applicant’s foreign affiliate, applicant and the subcontractor acting as go-betweens - the applicant is only a pass through for the Sponsor and there is no actual payment by the applicant from his own account to the investigator or institution.
The Clinical Testing Services is provided by the investigator and institution to the Sponsors and the CROs (including the applicant) are actually performing the Project Management function and for this the applicant is providing the project management service which is contracted between the CROs and also between the CRO and the sponsor - The agreement of Clinical Trial Services is verified and since the applicant satisfies all the conditions laid down in the Explanation to Rule 33, the applicant qualifies as a pure agent of the recipient of service, i.e. the Sponsor.
Whether the Project Management Services provided by the applicant to the foreign affiliate is an export of services or not? - HELD THAT:- In order to decide whether the said services amount to export or not, place of supply of service need to be determined. Section 97(2) of the CGST Act, 2017 empowers the Authority to give a Ruling on time and value of Supply. However it does not empower the Authority to examine the place of supply. In the absence of this provision the Authority is not empowered to answer whether the activity undertaken by the applicant amounts to export or not.
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2019 (11) TMI 1145 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of service - Works contract service or not - setting-up of the data centre facilities - rate of GST - CGST Act - Karnataka GST Act - HELD THAT:- The term Works Contract’ is clearly defined in Section 2(119) of the CGST Act, 2017. The definition is self explanatory and leaves no doubt that it is in relation to an immovable property only. Secondly, in Section 17(5) of the said Act, the term ‘plant and machinery’ is also defined. Here the machinery, apparatus and equipment is secured to the earth by way of a foundation or structural support. This foundation or the structural support is meant to impart stability to the machine while working. It, however, does not impart the machine/equipment the same degree of permanence that a building acquires when built on its foundation. Here the equipment is fitted on the foundation and the same can be removed and relocated without damaging it. The same does not hold true for a building or an immovable property - the inference drawn from the provisions of Section 17(5) are erroneous.
The proposed activity of setting-up of the data centre facilities as explained would qualify as ‘works contract’ as per Section 2(119) of the Central Goods and Service Tax Act, 2017 and Section 2 (119) of the Karnataka Goods and Service Tax Act, 2017
Rate of tax applicable on the activities proposed to be undertaken by them - HELD THAT:- The activities proposed to be carried out by the applicant qualify to be treated as works contract the rate of tax applicable would be accordingly applied. Notification 11/2017 - Central Tax (Rate) dated June 28, 2017 provides the rates of GST applicable on intra state supply of goods and services. SI. No.3 of the Notification provides that a composite supply of works contract, as defined in clause 119 of section 2 of Central Goods and Services Tax Act, 2017, is liable to GST @ 18% - Therefore, as the proposed activity falls under the category of the works contract it is liable to tax @18%.
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