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GST - Case Laws
Showing 1 to 20 of 1001 Records
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2018 (12) TMI 1971
Levy of GST / import duty goods purchase from Duty free shops - shops situated before immigration clearance by a passenger - Exemption on sale of cosmetic products, perfumes etc. to the International passenger - refund of any input tax paid on input supplies and input services - it was held by Bombay High Court that The Central Government holds that the transactions effected at the duty free shops at the arrival or departure of the International Airports in India might have taken place within the geographic territory of India, but for the purposes of levy of Customs Duties or any other taxes, the area of duty free shops shall be deemed to be the area beyond the customs frontiers of India.
HELD THAT:- The SLP is dismissed.
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2018 (12) TMI 1953
Works Contract - Non-reimbursement of differential tax amount arising out of change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) with effect from 01.07.2017 - difficulty faced by the contractors due to change in the regime regarding works contract under GST - HELD THAT:- The petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019.
If the petitioner(s) will be aggrieved by the decision of the authority, it will be open for the petitioner(s) to challenge the same.
Writ petition disposed off.
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2018 (12) TMI 1897
Issuance of summons issued under Section 14 of the Central Excise Act - Section 83 of the Finance Act and Section 70 of the Central Goods and Service Tax, Act 2017 - HELD THAT:- Considering the voluntary nature of pleadings where the petitioners are desirous of getting themselves assisted by the adjudicatory process, Let them represent their case before the concerned authority. The authority concerned shall complete the same in 8 weeks' time and if there is a need for any apprehension after once the adjudicatory process is completed, if they are not ready to fulfill their obligation, they may be given an opportunity of two more weeks for taking necessary steps. Petitioners shall appear on or before 11/01/2019 before the concerned Police Station.
Application disposed off.
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2018 (12) TMI 1892
Reimbursement of Differential tax - change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) with effect from 01.07.2017 - HELD THAT:- The petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019.
No coercive action shall be taken against the petitioner till 31.03.2019 - petition disposed off.
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2018 (12) TMI 1889
Non-reimbursement of differential tax amount - difficulty faced by the contractors due to change in the regime regarding works contract under GST - HELD THAT:- The petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019.
No coercive action shall be taken against the petitioner till 31.03.2019 - The writ petition is disposed of accordingly.
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2018 (12) TMI 1888
Seeking Adjournment before AAR - Short period fixed for personal hearing - Classification of goods - Mahua De-oiled Cake - De-oiled Rice Bran - Input Tax Credit - purchase of Mahua Oil Cake/Rice Bran Oil cake used in the manufacturer of solvent extracted oil - HELD THAT:- Petition disposed off.
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2018 (12) TMI 1867
Works Contract - Composite contract or not - making of supply of goods and services which are inter connected and inter-dependent on each other even though BOQ mentions separate value of goods and services - pre GST Period Contract - separate Sale and Service Billing in Pre GST period - contract for designing, installation and setting up of Automatic Fare Collection System for Lucknow Metro Project shall amount - Supply of Service or Work Contract - principal supply - rate of GST - LMRC Project - Rate of 18% or 12% to be charged after considering Rate Change Notification No. 1/2018- Integrated Tax (Rate) dated 25/01/2018 and all other provisions of GST Laws?
Whether a contract can be treated as Composite Contract under GST if it involves making of supply of goods and services which are inter - connected and inter - dependent on each other even though BOQ mentions separate value of goods and services? - HELD THAT:- If the goods and services are naturally required to work together in an inter-connected and inter dependent manner and are required to complete the principal service as clearly stipulated in the illustration of the 'composite supply', the services will fall under the category of 'Composite Supply'.
Whether a pre GST Period Contract can be treated as Composite Contract in GST even though there was separate Sale and Service Billing in Pre - GST period? - HELD THAT:- If the goods and services works together in inter-connected and inter-dependent manner and fall under the category of 'Composite Supply', the Contract executed under Pre- GST period would be treated as Composite Contract in GST era as in the GST era both sale and supply of services both are covered under GST Laws. Accordingly, the Contract laid down under Pre GST era be covered under Composite Contract in GST era under GST Laws, if the conditions for 'Composite Supply' are satisfied.
Whether contract for designing, installation and setting up of Automatic Fare Collection System for Lucknow Metro Project shall amount to a Composite Contract with Principal Supply being Supply of Service or Work Contract? - HELD THAT:- The end structure or machinery that cannot be located/ moved or shifted elsewhere at frequent intervals will be considered as immovable property. Therefore, we find that the contract given to the applicant by LMRC for designing and installation of the Automatic Fare Collection System which cannot be shifted or moved to other places/ buildings at frequent intervals and is meant for permanent beneficial of the building i.e. Stations under LMRC; will fall under the 'Works Contract'.
GST rate to be charged on LMRC Project i.e. Whether 18% or 12% to be charged after considering Rate Change Notification No. 1/2018- Integrated Tax (Rate) dated 25/01/2018 and all other provisions of GST Laws - HELD THAT:- Vide Notification No. 20/2017-Integrated Tax(Rate) dated 22.08.2017, the entries against serial number 3 for item (iii) in column (3) and the entries relating thereto in the Notification No. No. 1/2018-Integrated Tax (Rate) dated 25.01.2018, were substituted with “(v) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Service Tax Act, 2017, supplied by way of construction, erection, commissioning or installation of original works pertaining to,- (a) railways, excluding monorail and metro; attracting the duty rate @ 12% - Later, vide Notification No. 1/2018-Integrated Tax (Rate) dated 25.01.2018 the notification No. 8/2017-Integrated Tax (Rate) was amended and the word `excluding' was substituted by 'including' also classifying that the Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Service Tax Act, 2017 provided by a sub-contractor to the main contractor providing services specified in item (iii) or item (vi) above to the Central Government, State Government, Union territory, a local authority, a Governmental Authority or a Government Entity would attract duty at the rate of 12%.
Since, in the instant case, the composite supply of work contract is being provided by a sub-contractor to the main contractor i.e. Government Authority, the same shall be covered under the amendment carried out vide the notification dated 25.01.2018, the same shall now attract duty at the rate 12%.
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2018 (12) TMI 1865
Classification of goods - Breaded Cheese - classifiable as 'cheese' under Heading 0406 or otherwise? - rate of GST - Applicability of S. No. 13 of the Schedule-II appended to Notification No. 1/2017-Central Tax (Rate), dated June 28, 2017.
Whether the subject goods retain the characteristics of cheese even after being coated with batter and bread crumbs and pre-cooked partially, as is done in the case of the subject goods?
HELD THAT:- It is found from the manufacturing process described as well as from label and packaging of goods that these are not cheese per se but have been converted into an article of cheese having the identity and characteristics of snack foods. Here it will be pertinent to mention that a number of similar items are available in the market which are normally based on flour, potatoes, soybeans, pulses etc. but all such items are not bought and sold as the ingredients of which they are predominantly composed (Potatoes, Flour, etc.) but as distinct snack food articles. Similar is the case of subject goods as after undergoing the manufacturing process and packaging, they lose the identity of cheese and acquire that of a snack food article made from cheese.
It is found from the label/ packaging of the goods that the percentage of cheese is not more than 55%, which indicates that though cheese is the major component of the goods but it cannot be said to be present in such quantity that it predominates or overwhelms the presence of other ingredients. It is observed that the percentage of other ingredients is as high as 45%, which should prevent the goods from retaining the character of cheese. Therefore acceptance of these goods as cheese would not be the correct position.
Since, the cheese balls themselves are not specified in the tariff and they are admittedly a food preparation, hence they are classifiable as 'Food preparations not elsewhere specified or included' under Heading No. 2106.
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2018 (12) TMI 1862
Taxability - delayed payment charges on reimbursement of amount by client to Applicant - payment made by them beyond the time stipulated by the stock exchange and SEBI and for which payment is deducted by the stock exchange from the applicant's account - HELD THAT:- The delayed payment charges squarely get covered under GST for the purpose of taxation. The applicant is regularly providing services of 'trading of securities on behalf of customers' which is a supply of service on which the applicant is admittedly paying GST. Delayed payment charges are also linked to the above services of 'Trading of securities on behalf of customers' and GST on the same shall be payable in view of Section 15(2)(d) of CGST Act, 2017 and the UPGST Act, 2017.
Thus, Applicant is liable to pay GST on the delayed payment of charges which are overdue from the client towards trading of securities and reimbursed to them.
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2018 (12) TMI 1839
Refund of ITC - export of goods and services without payment of integrated tax - refund claims were rejected on account of the fact that the appellant could not submit the GST RFD-01A, which was to be submitted along with the refund claims as per the Circular No. 17/17/2017-GST, dated 15-11-2017 - HELD THAT:- The appellant has explained the reason for not submitting the same. His correspondence [e-mails] with GSTN and the comm, admin of CGST Gandhinagar Commissionerate enclosed with the appeal papers, clearly shows that there was a problem during the said period in taking printouts of Form GST RFD-01A and that this problem was faced by many of other appellants also. However, subsequent to the rejection of the refund on 14-4-2018, the appellant was able to take a printout of the said GST RFD-01A, which is enclosed with the appeal papers.
The primary and only ground on which the refund claims stood rejected was that he was not in a position to provide a printout of GST RFD-01A. This stands corrected since the appellant has provided a printout of the GST RFD-01A generated by the system. Surely, the appellant should not be punished for the problems/glitches in the portal/system - also, in terms of Rule 93(2) of the CGST Rules, 2017, the adjudicating authority has re-credited the electronic credit ledger by an order in Form GST PMT-03 on 24-3-2018.
Also, the appellant had vide his letter dated 13-2-2018, informed the adjudicating authority about the glitches in the system. However, nothing about this is mentioned in the impugned OIO - appeal disposed off.
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2018 (12) TMI 1838
Refund of accumulated ITC - rate of tax on inputs being higher than the rate of the output supplies - adjudicating authority has rejected part refund by observing that in case of inverted duty structure, the input tax credit pertaining to only such inputs, the rate of tax on which is higher than the rate of tax on output supplies, would be permissible to be put into the formula for calculating refund in case of inverted duty structure - whether while calculating the inverted rate refund claim under Section 54 of CGST Act net ITC will be taken after deduction of inverted rate purchase or otherwise?
HELD THAT:- Sub-rule 5 of Rule 89 of Central Goods & Services Tax Rules, 2017 has given the formula for calculating the matter to refund on account of inverted duty structure - Net ITC has been specifically defined in the rule, which states that input tax credit availed on input during the relevant period other than input tax credit pertain to zero-rated supply mentioned in Rule 89 of 4A & 4B.
The adjudicating authority, on his own has travelled beyond the clarification as prescribed in the statute. The adjudicating authority should have relied on the “exact wording” of the statute under consideration - the adjudicating authority has wrongly deducted ITC of the same and lower tax rate availed by the appellants and agree to the arguments placed forward by the latter - Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1749
Classification of goods - Non Laminated HDPE/PP woven Bags - rate of GST - classifiable under Tariff Heading 6305 or heading 3923 of the Customs Tariff Act?
HELD THAT:- If articles are manufactured from fabric woven from HDPE/PP strips of width not exceeding 5mm and the woven fabric is neither impregnated, coated, covered, or laminated in any manner, the same cannot be excluded from Section XI and chapter 63 falling under it - The bags under question as explained by the applicant are manufactured from fabric woven from HDPE/PP strips of width not exceeding 5mm further, the woven fabric is neither impregnated, coated, covered, or laminated in any manner therefore cannot be excluded from the purview of Section XI and-appear to be more specifically classifiable under sub-heading 63053300 of Chapter 63.
Thus, Non-Laminated Bags manufactured by the Applicant from HDPE/PP Strips of width not exceeding 5 mm, used for packing Sugar (Sugar bag), Flour (flour Bag), Food Grain (Grain Bag) and other similar bags are to be classified under Tariff Heading 6305 of the Customs Tariff Act - The Applicant is liable to pay GST is 5% on the subject goods.
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2018 (12) TMI 1737
Filing of Form GST TRAN-1 - transitional credit - transition to GST regime - HELD THAT:- The respondents are directed to provisionally entertain the GST TRAN-1 and other returns of the petitioner either by way of opening the portal or manually.
List this matter on 05.12.2018
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2018 (12) TMI 1733
Scope of Advance Ruling application - section 97 of CGST Act - levy of GST - rate of GST - Extraction of timber / bamboo from Natural Forest - Transportation of Timber / bamboo from Natural Forest to the Government depots - Maintenance of Government depots like classification / grading of timber & bamboo and wages to mastris for supervision - HELD THAT:- An applicant can seek an advance ruling in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant - Further, as per Section 103 (1) of the APGST Act such an Advance Ruling is binding only on the applicant and on the Officer Concerned or the jurisdictional Officer in respect of the applicant.
In the present case the applicant is recipient of the services and not supplier of such services - the application is not liable for admission and therefore rejected without going in to the merits of the case.
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2018 (12) TMI 1732
Government entity or not - Rate of GST - Electrification work for procurement of plant, design, supply, install and commission certain facilities viz Providing Underground cable works in Visakhapatnam city, package -1 and Package - 3 - whether tax rate of 12% [CGST-6% + SGST- 6%] is applicable? - N/N. 20/2017-Central Tax (Rate) Dated.22-08-2017 and N/N. 24/2017-Central Tax (Rate) dated 21.09.2017? - works contract services provided to Eastern Power Distribution Company of Andhra Pradesh Limited - HELD THAT:- The Government of India, vide notification No. 11/2017-Central Tax (Rate), dated - 28th June 2017 notified the rate of GST applicable on supply of services. Under this notification for heading 9954 the applicable rate of GST is 9%.
The Applicant Contractee i.e. APEPDCL is a Government Company i.e. wholly owned by the Government of Andhra Pradesh. The applicant had submitted the copy of Audited Annual Accounts of M/s APEPDCL for the FY 2016-17. It is evident from the schedule of Equity Share Capital of the Annual Statement that 100% share capital is held by the Government of Andhra Pradesh in the name of Honourable Governor of Andhra Pradesh. Thus, based on the above facts, it is concluded that the Government of Andhra Pradesh is having full control over the APEPDCL and covered under the definition of Government Entity.
Nature of work undertaken by the applicant - execution of works awarded by M/s Eastern Power Distribution Company of Andhra Pradesh Limited for Procurement of plant, design, supply, install and commission certain facilities - HELD THAT:- The works under discussion have been undertaken to execute/Implement various schemes for constructing sub stations, erection of distribution transformers, implementation of World Bank Projects etc.. Moreover, the above works undertaken by APEPDCL are for business purpose and the benefit of Concessional Rate of 12% (6% under Central tax and 6% State tax) as per notification is not available to the applicant - As per Section 2 of CGST Act, 2017 and APGST Act, 2017 defines “works contract” as a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.
In the instant case, the contract entered by the applicant squarely falls under the works contract and falls under entry no. (ii) of S.No.3 of the table of notification no. 11/2017 - Central Tax (Rate), Dated - 28th June 2017 as amended from time to time and corresponding notifications under APGST Act, 2017, and the applicable rate of tax is 18% (9% under Central tax and 9% State tax).
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2018 (12) TMI 1726
Grant of anticipatory bail - fake sale/purchase to the tune of crores of rupees by getting registration number under the G.S.T. Act, 2017 on the basis of wrong/fake documents - petitioner submitted that the main offence is under the G.S.T. Act and the FIR cannot be registered under Sections 420 and 120B of IPC - HELD THAT:- Without discussing the facts of the case in minute details and without expressing any opinion on the merits of the case, It is found that there are serious allegations levelled against the present petitioner and the petitioner is required for custodial interrogation.
Petition dismissed.
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2018 (12) TMI 1697
Validity of circular dated 17.08.2017 (Annexure-7) - direction to the persons who are dealing with HSD has been directed to pay GST - HELD THAT:- The circular dated 17th August, 2017, which is partially quashed by Punjab and Haryana High Court and has been approved by the Hon’ble Supreme Court. Other High Courts also have taken a similar view - In that view of the matter, it will not be appropriate to now enforce the circular dated 17.8.2017 and the circular of 1st November, 2018 will prevail.
Petition disposed off.
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2018 (12) TMI 1650
Appealable Order or not - Section 107 of the Central Goods and Service Tax Act, 2017 - alternative statutory remedy of appeal - HELD THAT:- The writ petition is disposed of at this stage, relegating the petitioner to avail the alternative efficacious remedy. In case the appeal is not entertained on merits, the petitioner shall be at liberty to have recourse to the appropriate remedy, in accordance with law.
Petition disposed off.
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2018 (12) TMI 1604
Supply of Services or not? - distinct persons - activities performed by the employees at the Corporate Office in the Course of or in relation to employment, such as accounting, other administrative and IT System Maintenance for the units located in the other states - supply as per Entry 2 of Schedule I of the CGST Act or not supply of Service as per Entry 1 of Schedule III of the CGST Act? - employer-employee relationship.
Challenge to Advance Ruling No. KAR ADRG 15/2018 dated 27.07.2018 [2018 (8) TMI 876 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA] pronounced by the Karnataka Authority for Advance Ruling
Held that:- There is no dispute that each unit registered in different States is a distinct person as per 25(4) of the CGST Act. When two units of the same business entity in different States take separate GST registration, then each registered unit will be considered as a distinct entity/ person as per the GST law Every distinct person will have to maintain separate records for their principal place of business. The laws relating to filing of returns and other compliance procedures shall apply to both of them separately. Every distinct person is liable to pay GST on all supplies of goods and services or both made by it and every distinct person is treated as a separate taxable person. In the event of supplies between distinct persons, there will not be a consideration element as the transaction is within units of the same business entity.
Prior to the introduction of GST, the events which were liable to tax under the existing laws were the events of manufacture, sale and the provision of a taxable service. Under the GST regime of taxation, the taxable event which attracts the levy of GST is the ‘supply’ of goods or services€ in terms of Section 9 of the CGST (and SGST) Act or Section 5 of the IGST Act, depending on whether the transaction of ‘supply’ is intrastate or interstate Thus the object of tax in GST is clear and far more comprehensive and is certainly broader than any single earlier law that has been subsumed in it The object of tax in GST is ‘supply’ as understood in Section 7 of the Act.
Employer-employee relationship - Held that:- The employee-employer relationship is to be viewed separately for every registered unit of the business entity. Therefore, in instant case, the services of the employees at the IMO in so far as they are benefiting the other registered units of the Appellant are to be considered as a Supply of service’ by one distinct person to another, and by virtue of the entry 2 of Schedule I, supply of services between distinct persons even if without consideration is a “supply” within the scope of Section 7 and is liable to GST.
What and how should the value of Such Supplies made by the to their branch offices be established? - Held that:- Rule 31 of the CGST Rules provides that where the value of a supply of goods or services or both cannot be determined under Rules 27 to 30, the same shall be determined using reasonable means consistent with the principles and the general provisions of Section 15 and the provisions of Chapter IV of the CGST Rules. Provided that in the case of supply of services, the supplier may opt for this rule ignoring Rule 30.
Expenses incurred by the IMO - cross charge mechanism for allocating the other expenses on the basis of proportionate turnover - Held that:- The ITC of the GST paid on the receipt of services or goods from a third party by the IMO can be availed by the IMO. If there are certain services commonly used by all the distinct persons, then the ITC can be distributed to all the units by the ISD route. There is a fundamental difference between the concept of ISD and that of cross charge. In the ISD concept, only ITC on input services which are attributable to other distinct entities are distributable. However, in a cross charge mechanism, all expenses incurred by a distinct person for the purpose of carrying out activities the outcome of which benefits other distinct persons is required to be cross charged Cross charging of expenses may or may not involve ITC and relates to both goods as well as services - In the case of cross charge, there is an element of service rendered by the person who cross charges his other units even though they belong to the same legal entity. On the other hand, in the case of ISD, there is no element of Service at all, but a mere distribution of Credit Further, certain expenses like rent paid on the immovable property, housekeeping services, etc incurred in maintaining and operating the IMO will not be distributable under the ISD route, rather they are required to be allocated to the other units only by way of cross charge. Therefore, the argument of the Appellant that the ISD mechanism is squarely applicable to them and not the cross charge method is not legally correct.
Thus, it is concluded that the IMO is providing a service to its other distinct units by way of carrying out activities such as accounting, administrative work, etc with the use of the services of the personnel working in the IMO, the outcome of which, benefits all the other units and whether such activity is to be treated as a taxable supply in terms of the entry 2 of Schedule I read with Section 7 of the CGST Act - The cost of the employees working in the IMO is an integral part of the cost of the services rendered by the IMO to its other distinct units. The services of the employees at the IMO in so far as they are benefitting the other registered units of the Appellant, will not be termed as ‘employee-employer relationship’ and will therefore not fall within the purview of entry 1 to Schedule III - the Ruling dated 27.07.2018 passed by the Karnataka Authority for Advance Ruling is upheld.
Ruling:- The India Management Office (IMO) of the Appellant is providing a service to its other distinct units by way of carrying out activities such as accounting, administrative work, etc with the use of the services of the employee working in the IMO, the outcome of which benefits all the other units and such activity is to be treated as a taxable supply in terms of the entry 2 of Schedule I read with Section 7 of the CGST Act.
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2018 (12) TMI 1603
The Chief Commissioner and the Senior Joint Commissioner, Large Tax Payer Unit, GST, Government of West Bengal, shall be impleaded as party Respondents in the present proceeding - Application is allowed.
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