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GST - Case Laws
Showing 81 to 100 of 107 Records
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2019 (1) TMI 487
Classification of goods - PP Non-woven bags - whether classifiable under Tariff Head 6305 90 00 of the GST Tariff which is aligned to the First Schedule of the Customs Tariff Act, 1975 or otherwise? - Held that:- The IOSR Journal of Polymer and Textile Engineering (IOSRJPTE), Volume 3, Issue 5 (Sep-Oct, 2016), PP 08-14 [www.iosrjournals.org] explains that Polypropylene (PP) is the homo-polymer that is widely used for the production of non woven fabric. Polypropylene sheets are stitched into bags.
Note 1 to Chapter 39 of the GST Tariff clarifies that throughout the nomenclature the expression “plastics” means those materials of headings 39.01 to 39.14 (Primary forms of Polypropylene is classified under HSN 3902) which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. Polypropylene sheets are, therefore, plastic, bags made from Polypropylene sheets are to be classified as plastic goods under Chapter 39.
Sub-heading 3923 29 covers articles of conveyance or packing of goods, namely sacks and bags, made of plastics other than polyethylene. Polypropylene Non-Woven Bags that the Applicant manufactures are, therefore, classifiable under Sub-heading 3923 29.
Ruling:- ‘PP Non-woven Bags’, specifically made from non woven Polypropylene fabric are plastic goods to be classified under Sub Heading 3923 29 and taxed at 18 % rate under Serial No. 108 of Schedule III of Notification no. 01/2017-C.T (Rate) dated 28-06-2017 under the CGST Act, 2017 & Notification No. 1125-FT dated 28/06/2017 under the WBGST Act, 2017.
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2019 (1) TMI 486
TDS liability under GST - Specified person u/s 51(1) - supplies from a public sector undertaking to another public sector undertaking - Public Sector Undertaking or not?. - Held that:- The Applicant has nowhere disputed that it has been established by the Government. The Application is silent on this issue.
Section 51(1) of the GST Act, read with the Notification as amended from time to time, mandates that certain categories of recipients shall deduct tax at source at a percentage while making payments to the suppliers above a threshold. Such recipients include inter alia an authority or a board or any other body set up by an Act of Parliament or a State Legislature or established by any Government with 51% or more participation by way of equity or control to carry out any function - As the GST Act does not define “Control”, it should be construed as defined under the Companies Act, 2013. Section 2(27) of the Companies Act, 2013 defines “Control”. It includes the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.
Neither the Central Government nor the State Government has any direct equity participation. But the “Government Companies”, as defined under section 2(45) of the Companies Act, 2013, together hold 62.29% of the paid up share capital and majority of the directors in the Board. WBIDC alone holds 49.46% of the shares, and enjoys four votes (including the casting vote of the Chairman) in a nine member Board. The Central and the State Governments, therefore, acting through the government companies, are in a position to indirectly control the management or policy decisions of the Applicant. The Central and the State Governments, therefore, “control” the Applicant within the meaning of Section 2(27) of the Companies Act, 2013.
Clause a (ii) of the Notification is, therefore, applicable for the Applicant if he is established by government notification.
Ruling:- The Applicant, if established by government notification, is liable to deduct tax at source under section 51(1) read with Notification No. 1344-FT dated 13/09/2018, being a company controlled by the Central and the State Governments.
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2019 (1) TMI 485
Works contract service - construction of a multi-modal IWT terminal at Haldia on EPC basis - applicability of Notification No. 24/2017-CT (Rate) dated 21/09/2017 and 31/2017 – CT (Rate) dated 13/10/2017 - rate of GST - Held that:- The IWAI is clearly not the Government of India, but a Government Entity having no sovereign authority to collect Government revenue. Moreover, contrary to what the Applicant claims, the user fees that IWAI collects is not credited to the Consolidated Fund of India and is, therefore, not revenue but proceeds from business as defined under section 2(17) of the GST Act.
The Applicant is supplying works contract service for an original work that is meant for commerce and business. It does not, therefore, satisfy the conditions laid down under Serial No. 3(vi)(a) of the Rate Notification - The Applicant’s supply of works contract service for construction of the Multi-modal IWT Terminal at Haldia, therefore, attracts GST at 18% rate under Serial No. 3(xii) of the Rate Notification.
Ruling:- Amendments to Serial No. 3(vi) of Notification No. 11/2017–CT (Rate) dated 28/06/2017, brought about by Notification No. 24/2017-CT (Rate) dated 21/09/2017 and 31/2017 – CT (Rate) dated 13/10/2017, are not applicable to the Applicant’s supply of works contract service for construction of the Multi-modal IWT Terminal at Haldia.
It will attract GST at 18% rate under Serial No. 3(xii) of 11/2017–CT (Rate) dated 28/06/2017.
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2019 (1) TMI 484
Classification of goods - Solar Evacuated Tube Collector (ETC) - whether the goods fall under CETH 8419 19 or otherwise? - benefit of Sl.No.234, Schedule-I of Notification No.1/2017 Integrated Tax (Rate) dated 28.06.2017 - Held that:- The solar water heater and system (domestic type) has been classified under heading 8419 19 20 and the parts of instantaneous or Storage Water heaters (domestic type) are covered under heading 8419 90 10 - The product in the instant case is part of the solar water heater system, which basically comprises of the said tubes and an insulated tank - the instant product merits to be a part of solar water heater systems under the chapter heading 8419.
Whether the product of the applicant is entitled for concessional rate under SL.No.234 of the Notification supra or not? - Held that:- The solar water heater in question does not appear to be a ‘Solar Power Based Device’. ‘Solar Power based Devices’ would be such a devices which are operated by electricity generated out of solar energy. In such devices first the solar energy.’ gets converted to electric energy and then the electricity so generated runs the appliance / device - In the instant case the product ETC does not generate electricity at any stage and hence can not be construed as either Solar Power based device or part thereof. Therefore the product “ETC” is not entitled for concessional rate of 5% IGST under SI.No.234 of Schedule-I of the Notification 01/2017-lntegrated Tax (Rate) dated 28.06.2017, effective from 01.07.2017.
Ruling:- The product Evacuated Tube Collector (ETC) though falls under Chapter 84 heading 19 but is not covered under SL.No.234 of Schedule-I of the Notification 01 (2017-lntegrated Tax (Rate) dated 28.06, 2017, effective from entitled for concessional rate of 5% IGST.
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2019 (1) TMI 483
Filing of GST TRAN-1 GST TRAN-1 - The case of the petitioner is that electronic portal was not functioning because of some technical glitches in the GST portal and therefore, she could not file her returns - Held that:- Learned counsel for the respondents, however, states that the portal is now open till 30.03.2019 and the petitioner may file her GST TRAN-1 application electronically - Both the counsels may verify if the portal is working and inform the Court on the next date.
Put up as fresh on 10.01.2019.
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2019 (1) TMI 420
Classification of goods - P.P. Bags which are made from strips having width of less than 5mm - whether the aforesaid PP bags would classify under chapter heading 63 or chapter 39 of the GST Tariff and what shall be the rate of GST on the same? - Notification No. F-A3-33-2017-1V (42) dt. 29.06.2017.
Held that:- The issue of classification of PP/HDPE Bags or sacks, made of HDPE tapes and fabrics, has been dealt with at length by the Hon’ble High Court of Madhya Pradesh in case of M/s. Raj Packwell Ltd. Vs. UoI [1989 (9) TMI 120 - HIGH COURT OF MADHYA PRADESH AT INDORE], where it was held that HDPE strips or tapes fall under the Head. 39.20, sub-heading 3920.32 of the Central Excise Tariff Act and not under Head. 54.06, sub-heading 5406.90. Similarly the HDPE sacks fall into Heading 39.23, sub-heading 3923.90 - thus it can be concluded that the impugned goods viz. PP Woven Bags/Sacks shall be classifiable under chapter 39 of the GST Tariff and not under Chapter 63.
Ruling:- The goods in question shall be classifiable under Chapter 39 of the GST tariff as articles of Plastic and would attract appropriate rate prevailing at the date and time of supply.
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2019 (1) TMI 419
Applicability of provisions of S.No.3 & 3A of Table of Notification No. 12/2017 dtd.28.06.2017 - distribution and supply of electricity in western Madhya Pradesh - Government Entity - composite supply - Held that:- The Applicant is a Government Entity and is definitely covered by the definition of Government Entity in terms of Notification No.32/2017 - The application that the Applicant has made a specific mention of Sr. No.3A to notification no. 12/2017, which provides NIL rate of GST for composite supply of goods and services where the value of supply of goods constitute not more than 25% of the value of composite supply provided to the Central government or state government etc. by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution - However, we do not find any specific mention of services in this context in the application. It is pertinent to mention here that applicability of Sr.No.3A will be supply specific and not supplier or recipient specific. Thus it is not possible to give nay ruling about applicability of Sr.No.3A to Applicant, particularly in absence of any specific mention of supply of goods or service or both.
The applicability of provisions of Sr.no.3 and 3A shall depend upon the nature of supply and no carte blanche ruling can be given to the Applicant without mention of specific service.
Ruling:- In view of insufficient information provided in the Application, and the nature of query being broadly generic, no ruling can be given on the Application.
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2019 (1) TMI 418
Levy of GST - Transmission or Distribution of electricity by an electricity transmission or distribution of electricity utility with respect to the Delay Payment Charges recovered by the applicant from its consumers - Entry no. 25 of notification 12/2017- Central Tax (Rate) Dated 28/06/2017 - applicable rate of tax - HSN/SAC code for Delayed Payment Charges - Held that:- The Delayed payment surcharge is a part of Tariff prescribed by MPERC. The Company recovers the said charge at rates fixed by the Authority. The Delayed Payment Surcharge is billed to consumer when the bill is paid by the consumer after the due date mentioned in the bill. The Delayed Payment Surcharge may be mentioned in the bill as Surcharge on Outstanding Amount or Late Payment Surcharge. Thus the nature of the service is interest/ late fee/ penalty for delayed in payment of consideration.
As per the provision of Section 15(2)(d) of CGST Act, 2017 and MPGST it is clear that any amount recovered in the name of interest or late fee or penalty tor delayed payment of any consideration for any supply, than same shall be included in the value of such supply - the component of interest and delayed payment charges are obviously having a direct relation with the value of supply to which such interest/delayed charges relate. These are in fact components of the value of supply and do not have any independent status.
The applicant is recovering delay payment charges not only towards supply of electrical energy as goods, supply Transmission/distribution of electricity service as an electricity distribution utility which are exempted, but also towards charges like metering charges and others which are taxable as per Circular No. 34/8/2018-GST, Dated - 01st March 2018 - in the instant case the supply in question is set of both, exempted (i.e., distribution & Transmission, retail supply of Electricity) and taxable supply (i.e., the other services as per circular no. 34/8/2018- GST, dated - 01st March, 2018).
The Delayed payment surcharge cannot be treated as separate service and same shall be included in the value of initial service. Thus, portion of Delayed payment surcharge attributable to exempted supply shall be exempted and portion of Delayed payment surcharge attributable to taxable supply shall be taxable.
Ruling:- The Delayed payment surcharge/ Late Payment Surcharge/ Surcharge on outstanding amount (by whatever name called) cannot be treated as separate service and same shall be included in the value of initial supply to which such charges relate, and the portion of Delayed payment surcharge attributable to exempted supply will be exempted and the portion of Delayed payment surcharge attributable to taxable supply is taxable at the rate on which the corresponding supply is taxed.
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2019 (1) TMI 417
Unable to upload FORM GST TRAN-1 within the stipulated time - input tax credit - Held that:- Not only the petitioner but also many other people faced this technical glitch and approached this Court - the petitioner may apply to the sixth respondent, the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner’s uploading FORM GST TRAN-1, without reference to the time-frame - petition disposed off.
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2019 (1) TMI 416
Transfer of eligible transitional credit - case of petitioner is that the petitioner has moved the representations dated 21.5.2018, 3.8.2018 and 16.8.2018 (Annexure P-11 Colly) before respondent No.6, but no action has so far been taken thereon - principles of natural justice - Held that:- The petition by directing respondent No.6 to forward the representations dated 21.5.2018, 3.8.2018 and 16.8.2018 (Annexure P-11 Colly) to the IT Redressal Committee concerned within next fifteen days after verification by the GSTN and the Committee shall thereafter decide the same in terms of Clause 5.4 of Circular dated 3.4.2018 (Annexure P-9), in accordance with law by passing a speaking order and after affording an opportunity of hearing to the petitioner - petition disposed off.
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2019 (1) TMI 361
Permission to withdraw Advance Ruling application - determination of Tax liability - Held that:- Since the applicant himself have sought withdrawal of the instant application, we allow the applicant the same (withdrawal of the instant application) - The application for advance ruling filed by the applicant is dismissed as withdrawn at the behest of the applicant.
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2019 (1) TMI 360
Classification of goods - mouth fresheners (after mixing Kharak, Khopra, Sugar, Saunf, Mishri, fennel, Dates, Saccharin, menthol, Papaya fruit, or natural flavouring substances) - whether classifiable under chapter heading 2106 of HSN as ‘Miscellaneous Edible Preparations not elsewhere specified or included’ chargeable at 18% GST or under Chapter 20 i.e. ‘Preparations of Vegetable, fruit, nuts or other parts of plants’ and taxable at 12% GST?
Held that:- The Applicant has been clearing/selling/supplying the impugned product under Chapter 21016 since long, i.e. much prior to roll out of GST with effect from 01.07.2017 - while the impugned product was being classified under Chapter Head 2106 of the erstwhile Central Excise Tariff Act 1985, there is neither any change in ingredients nor any change in manufacturing process. To be precise, the impugned product remains the same in GST regime with no change from pre-GST regime.
The solitary reason for the Applicant in moving instant application, as we could gather from the contents of the application, appears to be alleged divergent practice of classification of similar products of some other manufacturers. Be that as it may, nothing concrete has been brought on record by the Applicant that would necessitate review of already established classification of the impugned product of the Applicant.
Ruling:- The product Mouth freshener as described in the Application will merit classification under Chapter Heading 2106 of the GST Tariff as ‘Food preparations not elsewhere specified or included’ and would be chargeable to GST at applicable rate under the said tariff entry, presently read with Notification No.01/2017-Central Tax (Rate) dtd.28.06.2017 and the corresponding notification under MPGST Act 2017 (Sr. No.23 to Schedule III).
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2019 (1) TMI 359
Classification of supply - Works contract services or not - Applicability of clause (vi)(a) of Sr. No. 3 of table of Notification No. 11/2017-Central Tax(Rate) dated the 28th June, 2017 - applicability of rate of tax on the works contract services received - Held that:- The projects are undertaken for construction of electricity distribution lines, sub-stations and other infrastructure which are meant predominately for sell of electricity in urban and/or rural area - the projects under DDUGY, IPDS, ADB, SSTD, Saubhagya Yojna, FSP and all other schemes of governments are carried out for business purpose and the benefit of Concessional Rate of 12% (6% under Central tax and 6% State tax) as per notification under is not available to the applicant on works pertaining to construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration, which are carried out in respect of projects under DDUGY, IPDS, ADB, SSTD, Saubhagya Yojna, FSP and all other schemes of governments as the same is undertaken for the business purpose - The composite supply of works contract as defined at Section 2 of CGST Act '2017 and MPGST Act, 2017 is treated as supply of service in terms of serial no.6, Schedule Il of CGST Act '2017 and MPGST Act, 2017.
In the instant case, the applicant had awarded work to the successful bidder for Supply of Materials and Erection respectively. Therefore, the contract entered by the applicant is 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 - 20 June 2017 as amended from time to time and corresponding notifications under and MPGST Act, 2017, the applicable rate of tax is 18% (9% under Central tax and 9% State tax).
Ruling:- The Applicant is not entitled for the benefit of concessional rate of GST @12% (6% under Central tax and 6% State tax) for the said projects in terms of Notification No.24/2017-Central Tax (Rate) dated 21.09.2017 read with Notification No.31/2017-Central Tax (Rate) dated 13.10.2017.
The applicable rate of tax is 18% (9% under Central tax and 9% State tax).
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2019 (1) TMI 358
Vires of Notification No. 5/2017 - lapsing of the input tax credit - the notification ultra-vires subsection (3) of section 54 of Central Goods and Services Tax Act or not? - Held that:- Issue Notice returnable on 18th January, 2019. By way of ad-interim relief, the petitioner is permitted to reverse the input tax credit subject to the final outcome of the petition.
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2019 (1) TMI 357
Retrospective effect of rule 96 (10) (b) of the Central Goods and Service Tax Rules, 2017 - Held that:- Vide Notification No. 54/2018-Central Tax dated 9.10.2018, sub-rule (10) of rule 96 has been substituted making it applicable prospectively - It was submitted that, since the grievance of the petitioner was against the retrospective effect given to rule 96, such grievance no longer survives - petition dismissed.
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2019 (1) TMI 304
Appropriation of Bank Guarantee - imposition of penalty - Held that:- In the interest of justice, the authorities will keep the Bank Guarantee untouched till the Ext.P9 is considered - petition disposed off.
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2019 (1) TMI 303
Refund of IGST - Zero rated supply - Reference was made to Circular No.37/2018-Customs dated 9.10.2018 to submit that the same does not relate to IGST and would have no applicability to the facts of the present case. It was submitted that in any case, the petitioner has already returned back the differential drawback amount, and hence, there is no impediment in the way of the respondents in granting the refund to the petitioner.
Notices issued.
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2019 (1) TMI 231
Detention of goods - release on furnishing a bank guarantee - Held that:- The goods detained shall be released to the petitioner on its furnishing the bank guarantee - petition disposed off.
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2019 (1) TMI 195
Seizure/ retention order - Section 129(3) of the U.P. GST Act - Held that:- The petitioner is the owner of the goods and as such it is directed that the goods so detained and the vehicle shall be released to the petitioner, on furnishing security in terms of Clause (C) of Section 129(1) of the Act for the amount as indicated under Section 129(1)(a) of the Act forthwith - petition allowed.
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2019 (1) TMI 140
Detention of goods with vehicle - misclassification in tax rate - Held that:- The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer [2018 (8) TMI 1145 - KERALA HIGH COURT] has dealt with an identical issue - the respondent authorities is directed to release the petitioner's goods and vehicle on his "furnishing Bank Guarantee for tax and penalty found due and a bond for the value of goods in the form as prescribed under Rule 140(1) of the CGST Rules - petition disposed off.
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