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GST - Case Laws
Showing 1 to 20 of 183 Records
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2019 (11) TMI 1750 - GUJARAT HIGH COURT
Issuance of copy of summons and communications of the wife of the petitioner addressed to the respondent No.2 - HELD THAT:- Issue Notice, returnable on 28th November 2019 till then, no coercive action shall be taken against the petitioner in connection with the subject matter of this petition.
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2019 (11) TMI 1715 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Requirement of registration - commission agent, providing services in relation to sale or purchase of agriculture produce - reverse charge mechanism on services provided in sale of raw cotton vide notification No. 121/ST-2, dated 14.11.2017 - HELD THAT:- The provisions of Sections 7(l)(c) of the CGST/HGST Act are relevant. The provisions of the Section 7(1) clause (c) provide that the activities specified in schedule I shall be treated as supply under GST, even if made without consideration. One such activity, as detailed in Para 3 of schedule I, is in relation to the activities between the principal and his agent. The scope of principal-agent relationship in the context of Schedule I of the CGST Act is clarified by circular No. 57/31/2018-GST dated 04th September, 2018 (to be read with the corrigendum dated 05th November, 2018). As clarified vide above circular, the crucial component for covering a person within the ambit of the term 'agent', as contained in sub Section (5) of Section 2 of the CGST Act, is corresponding to the representative character identified in the definition of agent under the Indian Contract Act, 1872. The said circular further clarifies that a key ingredient for determining whether the agent is wearing the representative hat and is supplying or receiving goods on behalf of the principal would be whether invoice for further supply or goods on behalf of the principal is being issued by the agent or not.
Since, a commission agent 'Kachha Arhtiya' supplies goods to the buyers against 'Form I' as prescribed under the APMC Act of the State, vide which the titled of goods is passed on to the buyer against an agreed upon rate of the goods. The commission agent also charges its commission and other incidental charges through the said Form I under the APMC Act. The said Form I issued under the APMC Act is therefore sufficient test to hold that the commission agent i.e. 'Kachha Arhtiya' is supplying goods on behalf of agriculturists and is covered under the definition of 'agent' as contained in sub Section (5) of Section 2 of the CGST/HGST Act.
There is no merit in the argument of the appellant that he cannot be treated as recipient in terms of definition of recipient, as contained in Section 2(93) of the Acts ibid. Further, the reliance on circular No. 452, dated 17.03.1986 by the Central Board of Direct Taxes on this issue is also misplaced.
The advance ruling authority has therefore rightly held that such commission agents are liable for registration since they qualify as agents under schedule I subject to the provisions of Section 22(1) of the Acts ibid where the aggregate turnover of supply of exempted as well as taxable goods or services exceeds the threshold limit and that such commission agents shall also be liable for compulsory registration as per provisions of Section 24 (vii) of the Acts ibid and they shall be liable to charge tax on RCM basis on supply of Taw cotton'.
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2019 (11) TMI 1710 - AUTHORITY FOR ADVANCE RULING, GOA
Levy of GST - collection of Sopo from vendors for occupation of space (both open and covered) in the Municipal Market area - Renting of immovable property or not - whether making available a space, both open and covered within the area of the Municipal Market to vendors, hawkers and small merchants is covered in “Services by way of any activity in relation to a function entrusted to a Panchayat under article 243G of the Constitution or to a Municipality under article 243W of the Constitution? - HELD THAT:- The Eleventh Schedule of Constitution of India includes entry of markets and fairs at Si. No. 22. However, no such entry is available in Twelfth Schedule. The applicant here is Municipality and as such cannot be said to be providing services by way of an activity in relation to a function entrusted to a Municipality under Article 243 W of the Constitution. Moreover, such fees for occupation of open space are collected even by private parties in arears where there are business activities, as such it is not the function which is entrusted to local authority in which it is engaged as public authority.
GST is payable on collection of Sopo from 1 July, 2017.
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2019 (11) TMI 1709 - AUTHORITY FOR ADVANCE RULING, GOA
Classification of service - works contract service or not - composite supply or not - change in the rate of GST - supply of labour force/work without material by a sub-contractor to main contractor, who is engaged in supply of “works contract” service - whether reduced GST rate from 18% to 12% is applicable also to such sub-contractors supplying labour force/work without material to the main contractor who is engaged in supply of “works contract” service? - HELD THAT:- The applicant is a person registered under the provisions of GST Act, 2017 and is engaged in supply of labour force/work to M/s MVR, who are engaged in supply of “works contract” service - the natures of works undertaken by the applicant are predominantly dumping of soil from one place to another place and in relation to excavation. The applicant is performing his task with help of his men and machines, and he is not supplying any material to the main contractor.
The “works contract” is a composite supply and it is composition of activities of building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repairs, maintenance, renovation, alteration or commissioning carried out on an 'immovable property' and transfer of property (whether in form of goods or in some other form) must essentially take place with such activities. The supply of “works contract” is to be treated as supply of service but it is combination of supply of service and supply of goods. Transfer of property in goods (whether as goods or in some other form) is an essential component of supply to be treated as “works contract” service.
Thus, there is no transfer of property from the applicant to the main contractor (M/ s MVR) while performing the work of dumping of soil from one place to other place or while activity of excavation. The applicant is merely performing labour work. Therefore, the activities carried out by the applicant cannot be treated as “works contract”.
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2019 (11) TMI 1666 - CALCUTTA HIGH COURT
Maintainability of impugned order - HELD THAT:- The impugned order requires to be stayed. Accordingly, the impugned order is stayed till March 31, 2020.
The affidavits are required to be exchanged in this matter before a proper decision on merits - Matter to appear in the monthly list of cases for the month of January, 2019 as ‘For Hearing’.
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2019 (11) TMI 1652 - ANDHRA PRADESH HIGH COURT
Violation of principles of natural justice - levy of tax on turnover of tamarind - exempted under Entry No. 57 in N/N. 2/2017 Central Tax (rate), dated 28.06.2017 - HELD THAT:- In view of the clarification sought for by the State Government from the Spice Board [though Spice Board has nothing to do with the issue] and taking into consideration the judgments referred to by the Counsel for the Petitioner and since the request of the Petitioner for a personal hearing was not awarded, though, it may not be necessary always, but in the instant case, having regard to the facts in issue, we feel that it would be just and proper to give personal hearing to the petitioner to clarify the issues involved.
The matter is remanded back to the authorities concerned to deal with the same after giving an opportunity of hearing to the Petitioners - Petition allowed by way of remand.
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2019 (11) TMI 1646 - ANDHRA PRADESH HIGH COURT
Seeking to submit TRAN-1 Form on the GSTN Portal in terms of Section 140 of the Central Goods and Services Tax Act, 2017 - in the alternative, seeking to permit the petitioner to submit TRAN-1 manually and to direct the respondents to consider TRAN-1 so filed and grant the credit - HELD THAT:- No material is placed before this Court to show that the petitioner has made an attempt to get its application processed. However, Sri S.Dwarakanath, learned counsel for the petitioner, submits that the petitioner has made an attempt but it could not succeed as it did not reach the portal. He further submits that now, the authorities are allowing them to make an application provided they show some proof, which according to them, cannot be produced after length of time more particularly, the screened shots - At this stage, learned Standing Counsel would submit that the time fixed for submitting Form GST TRAN-1 is extended up to 31.12.2019.
The arguments of the learned counsel for the petitioner cannot be brushed aside - this Writ Petition is disposed of in terms thereof directing the respondents to either open the portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative, accept the Form GST TRAN-1 presented manually, on or before 31.12.2019 - Petition closed.
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2019 (11) TMI 1628 - GAUHATI HIGH COURT
Direction to hand over the investigation to the customs authorities, along with the seized goods and trucks for further investigation - offences of fraud and forgery under the Indian Penal Code - Section 67 of the GST Acts - HELD THAT:- From the provisions of Section 67 of the AGST Act and 100 and 101 of the Customs Act, a process for search, seizure, confiscation etc for violating any of the provisions of the AGST Act or the Customs Act can only be initiated upon having reasons to believe by the proper or appropriate officer that a person concerned was involved in violation of any of the provisions of the GST Acts or the Customs Act - In the instant case, the documents made available on record so far as it relates to violation of the provisions of the AGST Act are not being relied upon by the respondents to indicate any such violation of the provisions of the AGST Act. What is contended is that some such documents are either fraudulent or it contains forged signatures resulting in offences under Sections 120(B)/420/467/471 of the IPC.
If the authorities under the AGST Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act.
The detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days - Petition disposed off.
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2019 (11) TMI 1596 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Levy of GST - accounting entry made for the purpose of Indian accounting requirements in the books of accounts of Project Office for salary cost of Expat employees - transaction between same company or a transaction between two distinct legal entities? - HELD THAT:- A Project Office is merely an extension of the foreign company in India to undertake the project in India and limited to undertake compliances required under various tax and regulatory requirements in India. Accordingly, it is observed that the Head Office and project office are the same legal entity and they cannot be treated as different legal entities. We also observe that the project office is merely an extension of Head Office for administrative convenience/ to fulfill legal obligations.
If the said transaction is an intra-company transaction, whether the amount paid to the expat employees falls under the definition of “Supply” under GST laws or will it fall under the Schedule III of the CGST Act, 2017 i.e. “Services by an employee to the employer in the course of or in relation to his employment.”? - HELD THAT:- The project office and the head office are single business entity and the project office is acting as an extended arm of the Head Office. Further the project office is fulfilling all the obligations as employer with reference to expat employees and “Employee-Employer relation exist between the project office and expat employees - Further, as per Schedule Ill of the CGST Act, 2017, “the services by an employee to the employer in the course of or in relation to his employment” shall be treated neither as supply of goods nor a supply of service.
Thus, as the service provided by the expat employees to the project office fall under the category of “Services by an employee to the employer in the course of or in relation to his employment”. Accordingly, no GST is leviable on the salary paid to the expat employees and reflected in the books of accounts of the project office.
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2019 (11) TMI 1582 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of goods - Seats & Berth for the Railways Running Stock - the Coaches - HELD THAT:- In the instant case, it is observed that the seats/berth would be manufactured by the applicant, strictly as per the specification and design provided by the Indian Railways and specially meant to be solely used in railway coaches and nowhere else.
The seats and berths are the interior fittings inside the Coach and they are suitably classified under Tariff Heading 8607 99 10 i.e. “Parts of Coach work of Railways running stock”.
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2019 (11) TMI 1567 - AUTHORITY FOR ADVANCE RULING, HARYANA
Rate of tax - Development of commercial properties and had launched an Affordable Housing Project on 01.12.2015 under the scheme approved by the Government of Haryana - whether the applicant taxpayer is to pay tax @ 6%+6% (after availing land abatement= 4%+4%) availing the input tax & as provided under notification 11 & 17 of 2017 under CGST Act & notification 46 & 74 of 2017 under HGST Act? - the applicant taxpayer is to pay tax @ 0.5%+0.5% as provided under notification 3 & 4 of 2019 under CGST Act & notification 45 & 46 of 2019 under HGST Act?
HELD THAT:- On the basis of above self-declaration by the company, all the events i.e. Sanction of building plans, declaration of likely date of start of construction & registration under Haryana Real Estate Regulation Authority etc. occurred after 31/03/2019. Further, the company had not got the Environment Clearance certificate till the date of grant of RERA certificate, which has to be obtained, before start of construction activities of the project. As a confirmation of non-start of Construction activities, the company has declared that they had not incurred any expenditure on the project. This fact is clear from the declaration of the applicant before the RERA that expenditure incurred till the date of declaration was NIL.
In view of the above facts, it is clear that a separate license bearing No.82 of 2018 dated 06.12.2018 and RERA License No. GGM/339/339/71/2019/33 dated 27.05.2019 for construction of residential apartments over the land measuring 4.36875 Acres had been obtained by the Applicant on which construction commenced only after 01.04.2019. So, this project being developed by the company does not fall under the definition of “ongoing project”. Rather this project falls under the category of a project “other than an ongoing project as provided in the notification no. 03/2019 - Central Tax (Rate)” and the rate of tax applicable on flats over the land measuring 4.36875 Acre is applicable @ 0.5% + 0.5%(Without Input Tax) - While obtaining license from the RERA, the applicant itself declared the likely date of starting the construction work on an land measuring 4.36875 Acre as 05.07.2019. Moreover, the bookings of flats over an land measuring 4.36875 acres were made after 01.04.2019. So, it is clear that the construction over the land measuring 4.36875 was started after 1.04.2019. Since the construction of affordable residential apartments over the land measuring 4.36875 Acre with respect to separate License No.82 of 2018 dated 06.12.2018 and RERA License No. GGM/339/339/71/2019/33 dated 27.05.2019 commenced after 01.04.2019, so, this is not an ongoing project.
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2019 (11) TMI 1566 - AUTHORITY FOR ADVANCE RULING, HARYANA
Supply of goods or supply of services - activity of procuring PVC material (blank), printing of trade advertisement material on the said PVC material (blank) as per the design and graphics provided by the customer and supply of such printed banners to the shipping location mentioned in purchase order - appropriate classification and HSN Code - HELD THAT:-The nature of physical inputs, on which printing activity is carried out, does not change after the process of printing i.e. the napkin, tissue etc., are the same before and after the printing and hence the printing activity is ancillary and hence the supply of the same is that of supply of goods. The classification of the said goods prior or after the printing is same and is either Chapter 48 or 49.
In the instant case, it is an admitted fact that the PVC material is classified under Chapter 39 prior to printing and after printing it would become Trade Advertising Material & falls under Chapter 49. Therefore the activity of printing makes the PVC material into Trade Advertising Material i.e. banner/billboard etc., and thus the nature of the material changes. Further the applicant does not own or retain the usage rights of intangible inputs. In view of the foregoing the activity of printing of the content, supplied by the recipient, on the PVC material becomes principal supply and such supply constitute supply of service falling under chapter heading 9989 - The Applicant referred to several judgments of the apex court and the Tribunal, which are all related to the classification of the goods being supplied (Trade Advertising Material) as to whether they are to be classified under Chapter 39 or 49 of the Tariff Act. This authority does not dispute the classification of the said goods under Chapter 49. However, in the instant case such supplies are ancillary to the principal supply of Printing Service.
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2019 (11) TMI 1512 - ADDL. COMMISSIONER OF STATE TAX (APPEALS)-CUM-APPELLATE AUTHORITY, PANCHKULA
Detention/seizure of goods and conveyance in transit - E-way bill was incomplete inasmuch as Part-B of E-way Bill was not filled/completed in gross negligence - violation of provisions of Section 68 of CGST/HGST Act, 2017 and Rule 138 of CGST/HGST Rules, 2017 read with Section 20 of IGST Act, 2017 - HELD THAT:- From perusal of Section 68 of Haryana GST Act, it is clear that the government is empowered from in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed - As per Rule 138 of the Rules, 2017, any registered person who causes movement of goods or assignment valuation exceeding ₹ 50,000/- must upload the information in a shape of e-way bill containing Part-A and Part-B. The appellant violated the provisions of Section 68 of the Act ibid and Rule 138 of the Rules.
In any tax administration the provisions for Inspection, Search, Seizure and Arrest are provided to protect the interest of genuine taxpayers (as the tax evaders, by evading the tax, get an unfair advantage over the genuine taxpayers) and as a deterrent for tax evasion. These provisions are also required to safeguard Government’s legitimate dues. Thus, these provisions act as a deterrent and by checking evasion provide a level playing field to genuine taxpayers - The statutory scheme is that Chapter XVI of the combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX of the Acts provides the mechanism for detention, seizure, and release of goods and conveyances in transit. It begins with a non obstante clause and goes on to lay down the procedure. If any person transports or stores any goods contravening this Act or its rules, all those goods and means of transport and documents relating to those goods and conveyance will be detained or seized.
In the present case, the Proper Officer, Panchkula has imposed penalty on the ground that the goods in question were being transported without any proper and genuine document. The presumption was drawn in the matter for violation of law by not fill up the part-B of the E-way Bill in question. The checking officer has not considered the factual aspect of the matter before holding that there was violation of law. The documents produced by the driver-cum-person in-charge of the goods at the time of checking of the goods under dispute do not indicate that any attempt was made to evade tax. Record of case indicates that all the material particulars and information which were required and available in the documents, before issuing detention memo i.e. MOV-06 on 2-5-2018 by the Proper Officer, hence, no mala fide intention are proved or established. Under these circumstances, the question is whether penalty can be imposed only on the basis without establishing of mens rea or not for violation of law or attempt to evasion of tax.
If the facts and circumstances of the present case are evaluated in the backdrop of the aforesaid principles laid down by the Hon’ble Supreme Court in the case of matter of imposition of penalty, it would be seen that in the present case, penalty has been imposed mechanically without any dishonest intention or malice or mens rea having been established or proved.
The impugned order dated 4-5-2018, imposing tax and penalty under Section 129(3) of the HGST/CGST/IGST Acts upon the appellant is hereby set aside. However, a penalty of ₹ 5,000/- imposed under Section 125 of the IGST/CGST Act for not mentioning the proper detail in the documents (i.e. E-way Bill) - Appeal allowed.
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2019 (11) TMI 1508 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of flat - allegation is that the Respondent had not passed on the benefit of Input Tax Credit in respect of the flat purchased by him, by way of commensurate reduction in price - contravention of provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of input tax credit to his buyers who had purchased flats in his project ‘Laurel Heights’ w.e.f 01.07.2017 to 31.08.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
Penalty - HELD THAT:- It is revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoice while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefits of tax reduction and ITC and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.
Since no penalty provisions were in existence between the period w.e.f. 01.07.2017 to 31.08.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 18.06.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
Application disposed off.
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2019 (11) TMI 1478 - SC ORDER
CENVAT Credit - prevalent glitch with the TRAN-1 form - trial and error phase - HELD THAT:- Issue notice.
List along with Special Leave Petition (C) Diary No. 38404 of 2019.
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2019 (11) TMI 1454 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of Services - Marketing services to be supplied by the Appellant under the proposed Agreement - whether supply of “Support services” classified under SAC 9985 or “Intermediary service” classifiable under SAC 9961 / 9962 or any other heading? - Handholding services to be supplied by the Appellant - whether constitute supply of “Support services” falling under SAC 9985 or “Intermediary service” classifiable under SAC 9961 / 9962 or any other heading? - export of services - Handholding services to be provided by the Appellant - Section 2(6) of the IGST Act, 2017.
Whether the spectrum of services rendered by the Appellant to the Consultant Manager, located in the USA, would be construed as those of an intermediary as defined under section 2 (13) of the CGST Act, 2017, or otherwise?
HELD THAT:- The fact that Agent and Intermediary are the entirely two different concepts in so far as the GST Law is concerned, is evident from the fact that the “Agent” and “Intermediary” are separately defined under CGST Act and IGST Act respectively, having their own meanings assigned to them. In view of this very interpretation, under the GST provisions, it would not be proper to use these two terms, i.e., Agent or Intermediary, interchangeably, as these two terms have completely different essence and characteristics. Thus, it is opined that though there has been mention of the terms agent, broker in the definition of Intermediary as provided under section 2 (13) of the IGST Act, 2017, because of the proximity between these terms, i.e., agent, broker, intermediary, etc., as understood in the common parlance, but under the legal provisions of the GST Act, an agent does not necessarily mean intermediary, unless the conditions prescribed under the meaning assigned to the Intermediary under section 2(13) of the IGST Act, 2017 is satisfied in entirety. i.e. he should be merely acting as facilitator of the supply of goods or services or both between the two or more persons, and not supply of the goods or services or both himself from its own account. Thus, the definition of Intermediary as provide under the IGST Act has given utmost emphasis on the facilitation between two or more persons along with the rider that supply of goods, or, services, or, both, which are being facilitated by such intermediary, should not be undertaken by the intermediary himself.
It is observed that all such activities are culminating into the exploration and identification of the prospective investors, who would be investing their money in the EB-5 programme of the USA on the consultancy or advices provided by the Consultant Managers, who will be charging certain consultation fee from such interested investors. Now, it is expressly mentioned in the subject agreement that the Appellant would be receiving a fixed amount of consideration from their client, i.e. Consultant Manager, only after the successful completion of the deal between the Consultant Manager and the prospective customers, who have been identified, persuaded, and ultimately referred by the Appellant to such Consultant Manager after carrying out all these above enumerated activities, viz.- planning, research, surveys, formulation of strategy, sales prospection through various participation in industrial events, which eventually resulted into identification of the pool of prospective investors, interested in the said EB-5 programme - the Appellant is receiving consideration against the actualization of the facilitation of the main services of the investment related consultancy between the Consultant Manager and the prospective investors. In other words, if this supply of the main service, i.e., investment consultancy service, between the Consultant Manager and prospective buyers does not take place due to any reasons, the Appellant is not going to receive any consideration, whatsoever, for any or all activities, undertaken by him. Thus, it is observed that in case of unsuccessful negotiation between the Consultant Manager and the prospective investors, all these aforesaid activities undertaken by the Appellant would not be considered as supply even, as there would not be any consideration in such case, thereby, precluding the entire activities from the scope of the “supply”, as envisaged under section 7(1)(a) of the CGST Act, 2017.
All these activities carried out by the Appellant for its client, i.e., Consultant Manager, which are being claimed by the Appellant as the Business Support Services, have got no relevance, when performed independently and in isolation until all these services, when combined together, culminate into the supply of facilitation services between the Consultant Manager and the prospective investors, thereby, making the entire activities of the Appellant as those of an Intermediary as conceived under section 2(13) of the IGST Act, 2017.
In the present case, the Appellant is clearly playing the role of Intermediary, as envisaged under section 2 (13) of the IGST Act, 2017. As regards the classification of the services provided by the intermediary, it is stated that the said services of the Appellant, who is acting as an intermediary, would aptly be classified under the Heading 9997 bearing description other services - It is amply evident that all these activities undertaken by the Appellant, which may be in nature of the support services, are ultimately for the facilitation of the main services, i.e. Investment Consultancy/Permanent Residence Advisory services provided by its client, i.e. Consultant Manager and its customers, i.e. prospective investors. Since, the Appellant does not provide the main services, i.e., Investment Consultancy/Permanent Residence Advisory services from his own account, therefore, he may aptly be considered as intermediary under the facts and circumstances of the present case.
Once it has been decided that the entire gamut of activities of the Appellant, which are in the nature of the facilitation of the main services between the Consultant Manager and its customers, i.e. prospective investors, are those of an intermediary, we proceed to the determination of the other issues as to whether the activities carried out by the Appellant are export of services or not - Further, to determine the export of services in terms of section 2(6) of the IGST Act, 2017, place of supply of the services has to be determined so as to ascertain whether the supply of services under question can be considered as export of service or not. Now, since the place of supply is beyond the ambit of the advance ruling as discussed, we cannot pass any ruling in relation to the issue of the export.
Since the place of supply is beyond the ambit of the advance ruling as discussed above, we cannot pass any ruling in relation to the issue of the export. Accordingly, the Advance Ruling Authority should also have refrained from passing the ruling in the issues of export raised by the Appellant in his application.
The entire gamut of activities performed by the Appellant in terms of the subject agreement, are those of an intermediary, which would be classified under the heading 9997 bearing the description 9997.
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2019 (11) TMI 1453 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Works Contract or not - execution of Additional Air-conditioning work for the New building of Director of Education at Porvorim, Goa - Sr. No. 3 item no 3 of notification no. 20/2017(Central tax rate) dated 22/08/2017 - Composite supply or not - principal goods involved is Air Conditioner which falls to cover under schedule IV, Sr. No 119 of notification No. 1/2017 (Central tax rate) dated 28/06/2017 - Challenge to AAR decision.
HELD THAT:- The fixation of the air conditioner units along with the pipes, though it is undoubtedly a fixture, is for the beneficial enjoyment of the units and in order to use them for cooling, it has’ to be attached to the ceiling. The attachment, in such a case, does not make the air conditioning units a part of the land and as immovable property - the contract submitted is not immoveable property. Also, it is seen that the major part of the contract is supply of goods i.e. VRF Indoor and outdoor units, refrigerant piping, drain piping with insulation, MS parts, cabling etc. The appellant delivers these goods to the site of the client and using these goods the appellant provides services of installation, testing and commissioning of the system. Both the supply of goods and services are dependent on each other and are naturally bundled and done in the course of the business.
The AAR has also concluded that this is a composite supply and the principal supply is of goods in the instant case. We agree with the same. The supply of goods and services are conjoint to each other and inter dependent. Moreover, it is an established practice to supply air conditioner units and also provide the installation and therefore it can be construed as naturally bundled and therefore a composite supply, where, needless to say the principal supply is that of goods, which is the air conditioner units. Air Conditioners units fall under Chapter 8415 and are taxable @ 28% and are covered under Schedule IV, Sr no 119 of notification No 1/2017 (CV.T rate) dated 28/06/2017. Hence the principal supply in the composite supply being goods, the appellant is liable to pay GST @ 28% on the whole contract.
The contract in the impugned case is though a composite supply not for immoveable property, and therefore does not fall under the definition of ‘works contract’. The principal supply in the case is of Air conditioning units and the entire contract is taxable @ 28% - the order of the Advance Ruling Authority on both the questions upheld.
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2019 (11) TMI 1452 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Input Tax Credit - construction/reconstruction of the break water - Plant and Machinery or not - Section 17(5)(d) of the CGST Act - HELD THAT:- The ‘plant’ generally means and includes a place where industrial activity takes place or a factory where certain material is produced or big machinery used to carry out certain processes of production. The term ‘plant and machinery’ is used in conjunction with each other and by the application of the principle of ‘ejusdem generis’, it is clear that the meaning to be given to the term ‘machinery’ should take its color from the word ‘plant’. The term ‘plant and machinery’ therefore should be interpreted to mean a place where certain commercial /manufacturing activities/ processes of production are carried out with the help of inputs - In the present case, the breakwater wall or the Accopods that are an essential part of it certainly do not qualify as ‘plant and machinery’. The explanation to section 17 (5) (d) says that the term ‘plant and machinery’ covers apparatus, equipment and machinery. The break water wall constructed on the sea to protect the ship from high waves can hardly be called machinery or apparatus or equipment. Neither in common parlance nor in technical parlance would one associate a civil structure like a breakwall to be ‘plant and machinery’ or ‘machinery, apparatus or equipment. Machines are something which employ power to achieve. Equipment and apparatus mean tools for a particular purpose. The term ‘tool’ here is very important. It is meant to be a device or implement, especially one held in the hand, used to carry out a particular function. The breakwater wall does not remotely fall under any of these description.
The break water not only comprises piling of Accropods on top of each other but involves extensive civil work and foundation laying in order to build the break water wall and the Accropods is only a part of it. It is therefore an immoveable structure though not plant and machinery. It is seen from the explanation that land, building and civil structures are specifically excluded from the scope of ‘plant and machinery’. Therefore even though assuming that the structure is a plant and machinery (which it is not as we have concluded in the preceding paragraph) it will be excluded by virtue of it being a civil structure. The extensive earthwork as well as civil work which has gone into the making of the breakwater wall makes it clear that the entire thing is nothing but a civil structure. The terminology itself says that it is a wall.
The order passed by the AAR is confirmed.
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2019 (11) TMI 1451 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Applicable rate of GST on the services/ activities of the Company - reduced rate of GST - services by way of admission to amusement parks including theme parks, water parks, joy rides, merry-go-rounds, go-carting and ballet - GST Notification 01/2018 - whether the gaming zone operated by the Appellant in the mall could be construed as amusement park as being proffered by the Appellant, or otherwise? - HELD THAT:- It has been established beyond doubt that the gaming zone operated by the Appellant in the closed premises of mall is not the amusement park but the same can more reasonably be envisaged as amusement arcade.
Benefit of N/N. 11/2017-C.T. (Rate) dated 28.06.2017 as amended by the Notification No. 1/2018-C.T. (Rate) dated 25.01.2018 - HELD THAT:- It is seen that entry (iii) talks about the amusement parks including theme parks, water parks, joy rides, merry-go rounds, go-carting and ballet. On a plain reading of this expression of entry (iii) and applying the rule of legal interpretation, it may adequately be inferred that the said entry does not talk about the fun or recreation in the nature of the arcade games as is in the present case of the Appellant. Hence, it can decisively be concluded that the aforesaid entry (iii) does not cover the activities of the Appellant. On the other side, the entry (iiia) of the amended Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 squarely covers the Appellant’s activities as the gaming zone operated by the Appellant in the mall’s closed premises are nothing but the amusement facilities as per the definition of the amusement facility provided under section 65 (B)(9) of the erstwhile Finance Act, 1994.
Thus, it is clearly revealed that the provision of the fun or recreation by the Appellant by means of amusement rides and gaming devices deployed in the covered area of the mall premises, which can reasonably be construed as amusement arcade as has been established above, is nothing but the amusement facility.
It is perspicuous that the gaming zone operated by the Appellant in the mall would be covered by entry (iiia) of Sr. 34 of the Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 as amended by the Notification No. 1/2018 - C. T. (Rate) dated 25.01.2018, and would accordingly attract GST at rate of 28%.
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2019 (11) TMI 1366 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification of goods - rate of GST - fruit beverages or drinks 'K Juice Grape' - scope of definition under the FSSAI Act in section 2.3.3.A - Is there any persevered percentage of fruit or pulp in the beverages to call them as carbonated fruit beverages or drinks under the GST Act? - whether the said product fall under the category of fruit beverages or fruit based drinks?
HELD THAT:- The label of the product have the description “Carbonated Fruit Beverage”. As per the label, the ingredients are Carbonated water, sugar, grape juice, acidity regulator, etc. It also has permitted flavour and colour - as per the classification of FSSAI, Fruit juices are unfermented but fermentable product obtained by a mechanical process from sound, ripe fruit or the flesh thereof and processed by heat, in an appropriate manner, before or after being sealed in a container, so as to prevent spoilage and are intended for direct consumption.
In the instant case, the product is made by adding fruit juices to large quantities of water along with other preservatives which then goes through a carbonation process. The juices are not meant for direct consumption here but are just one ingredient of the drinks - fruit juices and carbonated beverages with fruit drinks are distinct products in the FSSAI regulations and the product of the applicant is not thermally processed fruit juice but covered under Para 2.3.30 of the regulations and Category 14.1.4.1 in the food category system in Appendix A to these regulations.
In the instant case, water constitutes around 76% in the products in question. The product is prepared by adding fruit juice, procured by the applicant (as per the letter addressed to the applicant by Food Systems Asia), to RO water. It is evident that this large quantity of water results in diluted product which as per the Explanatory Notes above gets classified under CTH 2202 - In the case at hand, the manufacturing process of the products involves addition of Grape juice (13%) to the filtered sugar solution (86%-76% RO water and 10% Sugar) in a blending tan which is subjected to Mild Thermal Treatment (loss of water by 2 to 3%), cooled to room temperature, to which additives and preservatives as per the formulation and coloring & flavoring agent are added.
Waters with added carbon dioxide which may contain added preservatives and flavoring, sugars are separately classified under Para 2.10.6 as ‘Carbonated Water’ and Category 14.1.1.2 as ‘table waters and soda waters’ which are different from ‘Carbonated Fruit Beverages or Fruit Drinks’ of Para 2.3.30 and Category ‘14.1.4.1’ of FSSAI regulations - the applicants product is classified under Para 2.3.30 of FSSAI and not para 2.10.6. It is evident that the ‘carbonated water’ described in Para 2.10.6 of FSSAI regulations are the ‘Aerated Waters’ covered under CTH 22021010. Therefore, the applicant’s product is not classifiable as ‘Aerated Waters’ under CTH 22021010 and the product commercially named as ‘K juice Grape’ is classifiable under CTH ‘22021090- Other’ as it contains the Grape fruit juice with added natural and artificial flavours.
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