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GST - Case Laws
Showing 41 to 60 of 123 Records
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2022 (6) TMI 815 - CALCUTTA HIGH COURT
Validity of adjudication order - opportunity of personal hearing not provided to the petitioners in spite of specific request from the petitioners in their reply to the show-cause-notice - violation of principle of natural justice - HELD THAT:- On perusal of the impugned adjudiction order it appears that though the Adjudicating Authority concerned has recorded that the impugned order has been passed after considering the reply filed by the petitioners but nowhere it appers that the petitioners’ request for personal hearing was either considered or rejected.
The impugned order dated 9th May, 2021 is set aside and the matter is remanded back to the Adjudicating Officer concerned to pass a fresh order after giving an opportunity of hearing to the petitioners or their authorised representative within eight weeks from the date of communication of this order - petition allowed by way of remand.
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2022 (6) TMI 768 - CALCUTTA HIGH COURT
Levy of IGST - Ocean Freight - services provided by a person, located in a non-taxable territory, by way of transportation of goods on a vessel from a place outside India up to Customs station of clearance in India - HELD THAT:- On perusal of judgement of Hon’ble Supreme Court in UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT], while agreeing with the view taken by the High Court in MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT], held to the extent that a tax on the supply of a service, which has already been included by the legislation as a tax on the composite supply of goods, cannot be allowed.
Appeal dismissed.
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2022 (6) TMI 767 - MADHYA PRADESH HIGH COURT
Scope of Advance Ruling application - Classification of services - rate of tax to sub-contractor - sub-contractor executes works contract pertaining to dam, wherein the principal contractor is liable for tax @12% for the period from 22.01.2017 to 25.01.2018 - HELD THAT:- Sub section 2 of Section 97 provides the questions on which the advance ruling can be sought under this Act. Section 98 provides the procedure for receipt of the application. The first proviso to Sub-section 2 of section 98 is coming in the way of the petitioner and relying on such provision the Authority as well as Appellate Authority have declined to grant advance ruling to the petitioner - According to the proviso, the authority shall not admit the application where the question raised in the application is already pending or decided in proceedings under any of the provisions of this Act. The Petitioner approached the Authority for obtaining the advance ruling only after a search conducted on 20.03.2020 in which the evasion of SGST was found which has resulted in issuing a show-cause notice dated 21.05.2020.
Since the petitioner has not paid GST @ 18% and appears to be contesting the aforesaid notice, therefore, the issue is treated to be pending before the Authority under the GST/SGST Act, 2017 hence, Authorities have rightly declined to grant advance ruling to the petitioner as the petitioner did not approach in advance before the Authority for obtaining the ruling.
Petition dismissed.
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2022 (6) TMI 766 - MADHYA PRADESH HIGH COURT
Maintainability of SCN - refund of accumulated credit of compensation cess - principal grounds of challenge to the show cause notices and subsequent orders are that the refund despite being due to the petitioner in law has been wrongly denied and the consequential orders of refusal to refund are non-speaking - violation of principles of natural justice - HELD THAT:- The claim for refund has been declined by assigning reasons which may be cryptic on bare perusal but are sufficient to enable the assessee to know the exact cause for rejection of the claim for refund. The reasons assigned could have been more elaborate but that by itself cannot render the impugned orders vitiated. The reasons assigned are sufficient to save the orders from being sacrificed at the alter of natural justice (non-speaking order). Pertinently, the reasons assigned cannot categorize the impugned orders to be non-speaking since they do not dissuade the assessee from knowing the mind of the adjudicating authority or dissuading from filing an appeal.
Certain other reasons have been assigned by the Revenue to support impugned orders, which this Court declines to go into in the face of the unavailed alternative statutory remedy of appeal u/S. 107 of the C.G.S.T. Act.
Petition dismissed.
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2022 (6) TMI 765 - CALCUTTA HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Jurisdiction of DRI - HELD THAT:- The respondents raised point of maintainability of the writ petition on the ground of availability of alternative remedy by way of an appellate forum but the same is not sustainable for the reason that it is a well settled principle that alternative remedy is not always a bar and particularly when the question of jurisdiction is involved in the writ petition and the writ court is very much empowered to entertain the writ petition, if an order or action of an officer is without jurisdiction or there is a violation of principle of natural justice or constitutional validity of a provision of law is involved and prima facie the petitioner has been able to make out a case that the issue involved in this case is the jurisdiction of the officer concerned who has exercised the power of a GST Officer and since interpretation of several provisions of law and notifications are involved, this writ petition cannot be thrown out at the motion stage on the ground of availability of alternative remedy and this writ petition has to be heard and decided on merit.
Prima facie the petitioner has been able to make out a case for an interim order and considering this aspect there will be conditional stay of the impugned adjudication order dated 3rd March, 2022 and subject to deposit of 10% of the demand in question, by the petitioner, within ten days from date and if such payment is made by the petitioner within the time stipulated herein, no coercive action shall be taken against the petitioner for recovery of the demand in question.
Petition disposed off.
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2022 (6) TMI 764 - CALCUTTA HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - requirement to comply with the pre-deposit - HELD THAT:- The submission of the learned advocate for the appellant appears to be reasonable because if the appellant had preferred a statutory appeal, he would be statutorily required to pre-deposit 10% of the disputed amount of tax and admittedly close to 20% of the disputed amount of tax has already been recovered. That apart, if any recovery proceeding has been initiated prior to 28th May, 2022, i.e. prior to expiry of the period of limitation for filing a statutory appeal, then such recoveries will have no sanction of law as it would, in effect make the appellate remedy infructuous.
Let a soft copy of the affidavit-in-opposition be shared with the learned advocate for the appellant not later than 19th June, 2022 and if the appellant desires to file a reply, the same should be filed not later than 22nd June, 2022. It is thereafter the matter can be listed before the Learned Single Bench for being heard and disposed of.
Petition disposed off.
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2022 (6) TMI 763 - MADHYA PRADESH HIGH COURT
Violation of principles of natural justice - input tax credit - petitioner submits that Annexure P/1 is conspicuously silent as regards the description of transaction on which the petitioner alleged to have availed the ITC - HELD THAT:- The petitioner was issued a notice dated 11.03.2019 with reference No.83/2019/41-B/21/TRAW-3/152. This notice finds mention in Annexure P/1, which is a notice under Rule 142(1) of the GST Rules. It is also important to note that the petitioner did not file any reply to Annexure P/1, dated 13.032019. If, the contents of paragraph-6 of the petition are taken into consideration, the same would reveal that the petitioner did not file any reply, but has made an attempt to demonstrate that he sought documents from the respondent No.2 to have some clarity on the issue, but those documents were not supplied to the petitioner and hence for want of those documents, the petitioner could not file reply.
The explanation so put forth by the petitioner has no substance inasmuch as, neither there is any reply nor there is any application filed by the petitioner on the record by which he sought documents as well as detail of the transaction from the respondents.
Whether the petitioner was aware about the transactions which were taken note of by the respondent to issue a notice under Section 74 of the Act of 2017? - HELD THAT:- If the entire, appeal is perused the same would reveal that the petitioner having already submitted its reply dated 08.05.2019 (Annexure R/2) disclosing the transactions with M/s V.K. Enterprises, Chhatarpur, failed to mention the facts as regards transactions with M/s V.K. Enterprises, Chhatarpur in his memorandum of appeal. Thus, apparently, the petitioner has made futile attempt to lay foundation by raising a ground that in the notice contained in Annexure P/1, he was not informed regarding the transactions, which in the eyes of the respondents were questionable or doubtful - the writ petition filed by the petitioner is grossly misconceived. The grounds raised in the entire petition are ill founded.
Petition dismissed.
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2022 (6) TMI 762 - MADHYA PRADESH HIGH COURT
Maintainability of appeal - time limitation - Cancellation of GST registration of petitioner - Section 107 (1) of GST Act - HELD THAT:- As per section 107 (1), the appeal could be preferred within a period of three months. The petitioner has contended that no notice was issued to him by the Deputy Commissioner Sales Tax. In any case no such notice was served upon him and he acquired knowledge of the fact of passing of the order from other source hence could not prefer the appeal within time - The period of limitation for preferring the appeal as per Section 107 (1) is three months from the date on which the decision or order is communicated such person. The appeal preferred by the petitioner has been dismissed by merely observing that the same has been preferred after a period of three months from the date of passing of the order which reason cannot be sustained since appeal could be preferred within three months from the date on which the order was communicated.
There is no material available on record to establish as to when the order passed by the Deputy Commissioner Sales Tax was communicated to the petitioner. That was the crucial fact for being ascertained as it would be that date from which the period of limitation for preferring the appeal would have commend.
The matter is remanded back to the appellate authority Joint Commissioner of Sales Tax, Indore for reconsideration of the matter and decision afresh - Petition allowed by way of remand.
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2022 (6) TMI 761 - MADHYA PRADESH HIGH COURT
Search and seizure - validity of proceeding initiated under Section 67 of the Act - HELD THAT:- The crux of the matter lies in a document in the present case I.e. the Panchnama which has been produced on record by the petitioner itself. The same reveals that on 25/01/2022 a search team reached the premises of the petitioner and at the premises there were two persons namely Anil Kumar Dahiya and Arvind Patel including nephew of proprietor of the petitioner’s firm Arihant Jain were available and signatures of all these persons were obtained while carrying out the Panchanama and then the stocks were checked there only. It was found that there was discrepancies in the stock which attracted the levy of tax, hence, the petitioner out of his own free will deposited the amount of tax as well as penalty of Rs.38,46,195/-.
Thus, if the said Panchanama is perused, it is evident that on the date of search itself, the amount of tax and a penalty was deposited by the petitioner as discrepancies were found in the stock and thus there was no question of any kind of seizure. Moreover, there were independent witnesses as well as the petitioner own representatives who did not raise any objection as regards search, thus, filing of the application before respondent No.5 to remeasure the stock was an afterthought.
There is no infirmity as far as the order/letter impugned are concerned and accordingly the present petition being devoid of merits stands dismissed.
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2022 (6) TMI 760 - MADHYA PRADESH HIGH COURT
Cancellation/suspension of registration of petitioner - delay of 865 days in filing appeal - time limitation - Section 29 and Section 107 of CGST Act - HELD THAT:- Section 29 of the Act of 2017 is confined to an application for revocation against cancellation of registration whereas Section 107 of the Act of 2017 deals with the provisions of Appeal including limitation to file appeal. The limitation under Section 107 of the Act of 2017 is three months which is evident from the perusal of the statutory provision contained in Section 107 of the Act of 2017. However, Section 29 of the Act of 2017 is entirely different and only deals with the application for revocation of cancellation of registration.
Perusal of circular dated 25/06/2020 reflect that it is unambiguous and in no uncertain terms only deals with Section 29 of the Act of 2017 and not with Section 107 of Act of 2017. Apparently, in the present case the appeal of the petitioner which was moved under Section 107 of the Act of 2017 has been rejected by the Appellate Authority inasmuch being time barred. It is further observed that the directive of Apex Court were issued subsequently upon out break of Covid-19 Pendemic in the year 2020 whereas in the present case, the registration was canceled on 04/02/2019 and the appeal was preferred on 16/09/2019.
The reasoning given by the lower Appellate Authority are just and proper. Circular dated 25/06/2020 (Annexure P/6) is of no assistance to petitioner inasmuch as the same only deals with Section 29 of the Act of 2017 and not with Section 107 of the Act of 2017 - petition dismissed.
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2022 (6) TMI 759 - KERALA HIGH COURT
Detention of petitioner's vehicle alongwith the goods - expired E-way bill - HELD THAT:- There will be a direction to the first respondent to complete the adjudication following the detention of goods pursuant to Ext.P4 within one month from the date of receipt of copy of this judgment. In the meantime, the first respondent shall release the goods covered by Ext.P1 and the aforesaid vehicle on the petitioner executing a bond for the value of the goods in FORM GST INS-04 and furnishing security in the form of Bank Guarantee equivalent to the amount of applicable tax, interest and penalty payable.
Petition disposed off.
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2022 (6) TMI 758 - KERALA HIGH COURT
Revocation of cancellation of registration of GST - non-application of mind - application rejected without any detailed reasoning - violation of principles of natural justice - HELD THAT:- Petitioner had filed the application for revocation of cancellation in a very detailed manner. However, the application is seen rejected in one sentence. Nothing further needs to be elaborated as to the non-speaking nature of the order under challenge. No reason has been specified in the impugned order. Reasons are soul of every order. However, brief it may be, the order must reflect an application of mind of the authority. Due to the absence of any reasoning reflected in Ext.P11, notwithstanding the merits or demerits of the contentions raised by both sides, Ext.P11 cannot stand the test of scrutiny of law.
The 1st respondent is directed to pass fresh orders on Ext.P8 application filed by the petitioner - petition disposed off.
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2022 (6) TMI 757 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Levy of GST - sending goods/ raw material/ capital goods from one unit to other - Existing and new unit (situated within the Rajasthan state) would have same GSTIN - comprise supply of goods or services or not - value is to be considered for E-way bills if that is to be issued? - applicability of provisions of Job-work - Input Tax Credit - For purchase of raw material/ capital good, separate factory address required or not? - For invoice of clearance of goods does the applicant have to mention both addresses or the address of the concerned unit from which the goods are cleared?
Registration of new unit (situated within the Rajasthan state) and leviability of GST on movement of goods/raw material/ capital goods from present unit (i.e. F-668,670 9F2, VKI Area, Jaipur) to new unit and vice versa - HELD THAT:- As far as supply of goods or services or both between these two establishment of applicant is concerned, it is found that movement of goods/raw material/ capital goods from present unit (i.e. F-668,670 9F2, VKI Area, Jaipur) to new unit and vice versa does not constitute 'supply, as these units are not distinct person to each other due to single registration - In the present case, for a transaction to be a 'supply', the essential criteria to be satisfied in the involvement of consideration, with the only exceptions being the activities mentioned in Schedule I and import of services. Thus, in the present case being unit transfer of raw material, semi-finished, finished, capital goods; there no consideration is involved and the activity is neither specified in Schedule I nor in the nature of import of services, the activity i.e. movement of raw material, semi-finished, finished, capital goods between the two units under same GST registration number shall not be a 'supply' under the provisions of the GST Act, 2017 - in the present case no liability of GST would arise for such of raw material, semi-finished, finished, capital goods between two units within the state and working under same GSTIN.
Consideration of value for E-way bills if that is to be issued for transfer of goods from one unit to other - HELD THAT:- The applicant is not exempted to generate e-way bill for the movement of capital goods, raw material or finished goods to be made between their two units. Further, as far as value for E-way bills if that is to be issued for transfer of goods from one unit to other is concerned, we find that being not a 'supply', no GST would attract on such movement, therefore there will not be any transaction for sale, mortgage, transfer of property involving any kind of value between the two units. Thus, for transfer of the goods between two units they would have to take a value of such goods as explained in Explanation-2 to Sub-Rule (1) of the Rule 138 of the CGST Rules, 2017 and issue an E-way bill for such transfer (if required depending on value of such transferred goods).
Whether movement of raw material/capital goods/ semi-finished goods for further processing would the provisions of job-work apply or they can send these goods on simple internal challan? - HELD THAT:- As the question of the applicant does not fall under the category mentioned in the sub section (2) of the section 97 of the CGST Act, 2017 therefore, no answer is being given.
Whether applicant would require to issue E-way bill for such movement of goods from our one unit to other if the value of the goods to be moved is higher than the threshold limit required for issue of E-way bill in normal course? - HELD THAT:- As per sub section (2) of the section 97 of the CGST Act, 2017, the applicant can seek the advance ruling on the questions as mentioned in sub section (2) only. As the question of the applicant does not fall under the category mentioned in the sub section (2) of the section 97 of the CGST Act, 2017 therefore, no answer is being given.
Whether applicant can use ITC for the goods/raw material/capital goods received in one factory for payment of GST for the clearance made from second unit? - HELD THAT:- The applicant would be eligible for ITC credit in respect of goods and services received by them subject to condition and restrictions of the chapter V Input Tax Credit. However, it is also mentioned in the provisions that ITC would be credited to their electronic credit ledger. The situation arising in the case is that since applicant would be having single GST No. for both the units then as per the section 16(1) there would be only one ledger for the ITC credit - all eligible Input Tax Credit that is claimed by a registered person in the GST returns (GSTR-2 or GSTR-3B) reflects in Electronic Credit Ledger. Credit in Electronic Credit Ledger can be used only for payment of tax. The electronic credit ledger shall be maintained in FORM GST PMT-02 for each registered person eligible for input tax credit on the common portal and ever)' claim of input tax credit will be credited to this ledger. The amount available in the electronic credit ledger can be used for making any payment towards output tax.
The applicant would be able to use the eligible credit of inputs and capital goods for payment of GST for the goods cleared from other unit as there is only one electronic ledger for the credit of both the units having same GST number. Hence, applicant would be able to use this credit for discharging their GST liability from either of the units.
Under which related to factory address in respect of purchase of raw material by these units? - HELD THAT:- As per sub section (2) of the section 97 of the CGST Act, 2017, the applicant can seek the advance ruling on the questions as mentioned in the sub section (2) only - As the question of the applicant does not fall under the category mentioned in the sub section (2) of the section 97 of the CGST Act, 2017 therefore, no answer is being given.
Determination of address of units on the invoice - HELD THAT:- As per sub section (2) of the section 97 of the CGST Act, 2017, the applicant can seek the advance ruling on the questions as mentioned in the sub section (2) only - As the question of the applicant does not fall under the category mentioned in the sub section (2) of the section 97 of the CGST Act, 2017 therefore, no answer is being given.
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2022 (6) TMI 756 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Classification of supply - Supply of goods or services - composite supply - activities undertaken for implementing various construction/ repair/ renovation/ addition/ alteration projects by GMVN Ltd. for Central Government, State Government, Local Authority or Governmental Authority the consideration for which is received in the form of grants - exemption from GST or not - applicability of N/N. 12/2017- Central Tax (Rate) (As amended) dated the 28th June, 2017 - HELD THAT:- The applicant has received payment for execution of a specific work i.e. the type and scope of the work is predetermined, hence, we hold that money transferred by the Government into the accounts of the applicant in the form of grant is a "consideration" under the provision of CGST Act, 2017, consequently the activity undertaken by the applicant for the State/Central Government or local authority amount to supply as defined in section 7 of the CGST Act, 2017 - the applicant in their application under reference has accepted on their own that the amount received is consideration, the activity undertaken by them for the Government amount to Supply as defined in section 7 of the CGS Act, 2017 and that the work undertaken is a service and hence not under dispute.
Whether the works referred to in by the applicant is supply of goods or supply of services? - HELD THAT:- It is found from the definition of scope of supply, Composite supply and works contract and the terms of reference appearing in the work allocated to the applicant namely "construction of 'Shaheed Dwaf at Banjarawala, Dehradun" and "construction of 'Creation of barrier free environment for PWDs and tourist rest houses in various district of Uttarakhand State', involves civil construction work viz. construction, repairs, etc. and hence falls under the definition of works contract service - on the basis of the two works contract, generalized view cannot be in respect of to any other work/ contract, by applying the same yard stick.
Applicability of GST on the grants - HELD THAT:- By virtue of Notification No. 12/2017-CT (Rate) dated 28.06.2017 any supply of services by a Government Entity to Central Government, State Government' Union territory, local authority or any person specified by Central Government, State Government, Union territory or local authority is exempt from payment of GST, if the consideration received from Central Government, State Government, Union Territory or local authority, is in the form of grants. We find that from the wordings of the said notification it is clear that exemption is available, only, if the consideration received is in the form of grants and has to be utilized for the intended purpose only. The litmus test in such cases would be the character of the consideration and if it qualifies to be a grant then and only then the benefit under the provisions of Notification No. 12/2017-CT (Rate) dated 28.06.2017, is available.
In the instant case it is found that in the letter No. 41/VI/2021-80(51) 2020 of the Secretary, Uttarakhand Government the word 'Anudaan' at Para 16 and in the letter dated 16.09.202, Department of Empowerment of Persons with Disabilities (Divyangjan), Ministry of Social Justice and Empowerment, GOI, Para 3 specifies that 'Purpose for which this grant is sanctioned: - creation of barrier free environment for PwDs in 44 No. Tourist Rest House in 07 Districts of Uttarakhand State under administrative charge of GMVNL, Dehradun under the SIPDA scheme during 2020-21" , establish that the consideration is in the form of grants and hence, it is held that the benefit of exemption Notification No. 12/2017-CT(Rate) dated 28.06.2017 is available to the applicant in respect of these two works.
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2022 (6) TMI 755 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Classification of services - rate of GST - Intermediary services - Overseas Commission Agent is covered within the definition of the term ‘intermediary’ as provided under section 2(13) of the IGST Act, 2017 or not - import of services or not - Levy of GST on RCM basis under section 5(3) of the IGST Act, 2017 on commission paid to the Overseas Commission Agent.
Overseas Commission Agent is covered within the definition of the term ‘intermediary’ as provided under section 2(13) of the IGST Act, 2017 or not - HELD THAT:- Any person, who enables the supply of goods/services between two persons, is considered as intermediary. However, where a person is providing services or supplies of goods on his own account to his customers, It cannot be termed as intermediary. As per the agreement dated 05.03.2021, Mr Bobby Kapoor, has to arrange or facilitate the supply of goods of the applicant to international Market and in return he shall get the commission on agreed terms - on perusal of legal provisions, agreement dated 05.03.2021 & other records submitted by the applicant in this regard, it is observed that Mr Bobby Kapoor, a overseas commission agent, fall within the definition of ‘intermediary’ as provided under section (2)13 of the IGST Act, 2017.
Services received by applicant form the Overseas Commission Agent falls within the meaning of the term ‘import of services’ or not - HELD THAT:- As per facts & circumstances, services received by applicant form the Overseas Commission Agent falls within the meaning of the term ‘import of services’ means the supply of any services where, (i) the supplier of service is located outside India; (ii) the recipient of service is located in India; and (iii) the place of supply of service is in India.
On perusal of said legal provisions, it is found that the services can be called as ‘import of services’ only when it is satisfied all the three conditions mentioned therein. On perusal of records, it is found that the conditions (i) & (ii) are satisfied in as much as Mr Bobby Kapoor, supplier of service, is located within India. Now in respect of (iii) condition, section 13 of the IGST Act, 2017 specifically deals with place of supply of a service as to whether a service can be termed as import of service or otherwise. On perusal of section 13 of the IGST Act, 2017 is relevant to the issue in hand which provides that the place of supply of the intermediary services would be the location of the supplier of such services (i.e. location of intermediary service provider). Thus the condition (iii) is not satisfied as the place of supply of service is not in India.
Thus, the services received by the applicant is out of the ambit of “import of services” in as much as the condition (iii), is not satisfied in terms of section 13(8)(b) of IGST Act, 2017 as place of supply of service is out of India, since the location of Mr. Bobby Kapoor, is UAE, which is a place outside India.
Whether the applicant is required to pay GST on RCM basis under section 5(3) of the IGST Act, 2017 on commission paid to the Overseas Commission Agent? - HELD THAT:- On perusal of section 5 of the IGST Act, 2017, it is found that the said section deals with levy and collection of tax i.e. IGST and section 5(3) of the IGST Act, 2017 provides that the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.
In the present case, the import of services shall be treated as inter-state supply of services and the same is chargeable to IGST under reverse charge i.e. service recipient located within Indian territory has to pay the tax. Since the transaction is related to an intermediary service which is out of the ambit of ‘import of services’ as discussed in foregoing paras, accordingly we observe that GST under reverse charge is not payable on the same.
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2022 (6) TMI 697 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Classification of services - Hostel Accommodation Charges per Hostel Seat provided by the Mody Education Foundation (MEF) to the students of Mody University of Science and Technology (MUST) having value of service upto Rs. 1000/- composite supply - charitable activities or not - Applicability of exemption under entry no. 14 of the notification no. 12/2017 dated 28-06-2017 - HELD THAT:- In the present case, it is observed that the applicant will provide single service of 'hostel accommodation' for a single price of less that Rs. 1000/- per Hostel Seat. Being single taxable service, the supply is not a Mixed Supply under GST - supply of 'hostel accommodation service' by the applicant in the present matter is neither a composite supply nor a mixed supply. Rather it is a supply of 'residential or lodging service' at Hostel which would be provided to students of MUST.
On gone through of exemption Entry No. 14 of the Notification No. 12/2017-CT (R) Dated 28.06.2017 as well as CBIC's Circular No. 32/06/2018-GST dated 12°February, 2018, it is found that the description of service is user based, meaning that, if the accommodation is used for residential or lodging purpose then it is immaterial who the user is. The said entry mentions “Services by a hotel, inn, guest house, club or campsite, by whatever name called, for residential or lodging purposes”. The word 'hostel' not being specifically mentioned implies that the same would be covered under the term 'Whatever name called' - the scope of the entry is restricted to use of the accommodation unit for residential and lodging purpose only.
The service of hostel is optional and not coming out from the package and separate consideration will be charged for providing such hostel facility to the students. In fact, the hostel fees are not a part of any package concerning commercial training & coaching services rendered by the applicant. The Applicant is exclusively providing the Hostel Accommodation Service in isolation and no other service is clubbed or bundled along with the Hostel Accommodation Service. Thus, there is no question of Composite Supply u/s 2 (30) of the GST Act or Mixed Supply u/s 2(74) of the GST Act in the Case of the Applicant - Considering the provisions of Entry No. 14 of the Notification No. 12/2017-CT (R) Dated 28.06.2017 and clarification given by CBIC in Circular No. 32/06/2018-GST dated 12th February 2018, it is concluded that, the applicant's activity is satisfying the conditions of Entry No. 14 of said Notification No. 12/2017-CT (R) Dated 28.06.2017 and hence would be exempted from GST.
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2022 (6) TMI 696 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Classification of goods - appropriate rate of GST - U-bolt - Front Spring Bolts - Spring Pins - covered under Chapter 73 or Chapter 87? - HELD THAT:- At Section XV the expression “parts of general use” has been defined to include (a) Articles of Headings 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metal; and (b) Springs and leaves for springs, of base metal, other than clock or watch springs (Heading 9114) but in SECTION XVII the expression “parts” and “pans and accessories” has been excluded for Parts of general use, as defined in Note 2 to Section XV, of base metal (Section XV). Further, a conjoint reading of the notes, suggest that the articles falling under Heading 7318 do not fall under the expression parts and parts and accessories of motor vehicles, Accordingly, the articles falling under 7318 will be covered exclusively under this category for tariff purpose.
The heading 7318 includes all types of fastening bolts and metal screws regardless of shape and use, including U-bolts, bolt ends (i.e., cylindrical rods threaded at one end), screw studs (i.e., short rods threaded at both ends), and screw studding (i.e., rods threaded throughout) and find that as per the HSN explanatory notes, U-Bolt which is made of steel, is a type of bolt which is specifically covered under the CTH 7318, therefore, these are classifiable under the CTH 7318.
Front Spring Bolt - HELD THAT:- The Front Spring Bolt in question, which is also made up of Steel, fulfils the description as given in the HSN explanatory note and is designed to engage a nut is also classifiable under CTH 7318.
Spring Pins - HELD THAT:- Spring Pins manufactured and supplied by the applicant are made up of various types of steel and are in the nature of a spring and hence provided under the sub-heading “Other”, covered under the CTH 7320 which aptly covers springs and leaves for springs, of iron or steel. Accordingly, the Spring Pins are classifiable under Tariff Item 7320 90 20.
Hon’ble Supreme Court of India in the case of G.S. AUTO INTERNATIONAL LTD. VERSUS COLLECTOR OF C. EX., CHANDIGARH [2003 (1) TMI 700 - SUPREME COURT] has held that the goods in question cannot but be regarded as parts of automobiles, it has to be held that they are suitable for use primarily with articles of Chapter Heading Nos. 87.01 to 87.05 It follows that the goods in question cannot be treated as falling under Chapter Heading No. 73.18 and that they can properly be classified under Chapter Heading No. 87.08 of the Central Excise Tariff Act, 1985.
Since in the Commercial parlance the goods in question are known as Nuts and Bolts namely U-bolt, Front Spring Bolt, and Spring Pin and not by any other name and as held by Hon’ble Supreme Court that the Classification of goods is to be determined by commercial identity test and not by functional test i.e. as to how they are referred to in the market by those who deal with them, be it for the purpose of selling, purchasing or otherwise, they are to be classified as a generic product. Hence we are of the view that if the generic goods as known in commercial parlance find specific mention in a particular Tariff Head and is also not covered in exclusion clause in any chapter note; the classification of goods has to be determined by commercial identity test and not by functional test.
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2022 (6) TMI 655 - GUJARAT HIGH COURT
Violation of principles of natural justice - opportunity of hearing not provided - levy of penalty - HELD THAT:- It is clear from the record that Notice as well as order impugned was passed on the same date i.e. 06/01/2022. An opportunity of hearing has not been afforded to the petitioners and therefore, it is in breach of principles of natural justice.
The petition requires consideration and hence, the same is allowed. The impugned order dated 06/01/2022 passed by respondent No.2 is hereby quashed and set aside. The petitioner shall appear before the authority within a period of three weeks from the date of receipt of this order - Petition allowed by way of remand.
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2022 (6) TMI 653 - MADRAS HIGH COURT
Violation of principles of natural justice - restoration of cancellation of registration of petitioner - time limitation - HELD THAT:- Following the earlier order passed by the learned Judge of this Court in a batch of cases in the matter of TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. [2022 (2) TMI 933 - MADRAS HIGH COURT] where it was held that the petitioner is hereby directed to approach the Appellate Authority on the terms indicated in para 229 of the order made by this Court in the case of Tvl.Suguna Cutpiece Center case, where if such an appeal is filed within the time stipulated therein, the same shall be entertained and considered and final order shall be passed within the time stipulated therein.
The petitioner is hereby directed to approach the Appellate Authority on the terms indicated in para 229 of the order made by this Court in the case of Tvl.Suguna Cutpiece Center case, where if such an appeal is filed within the time stipulated therein, the same shall be entertained and considered and final order shall be passed within the time stipulated therein.
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2022 (6) TMI 652 - MADRAS HIGH COURT
Validity of assessment order - Period of limitation of 3 years u/s 73 of GST - reversal of Input tax credit - assessment year 2017-18 - case of petitioner is that the assessing officer should have passed an order within three years period from the due date for furnishing of annual return for the financial year to which the tax was not paid or short paid or input tax credit wrongly availed etc. - HELD THAT:- Insofar as the limitation point raised by the learned counsel for the petitioner is concerned, as has been rightly pointed out by the learned Government Advocate, that, the three years period ends only on 30.09.2021 within which since the order dated 08.07.2021 has been passed it is saved by limitation. Therefore, that point cannot be canvassed by the learned counsel for the petitioner in favour of the petitioner.
Insofar as other merits of the case like submission of supporting documents etc., this Court need not go into those aspects and that matter has to be necessarily gone into by the appellate authority before whom the petitioner can file appeal under Section 107 of the Act.
This writ petition is not entertainable and accordingly it is dismissed.
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