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GST - Case Laws
Showing 1 to 20 of 128 Records
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2019 (2) TMI 2015
Recall/revision of judgement - possession of suit property - suit was barred under the previsions of the Small Causes Court Act or not - mis-joinder of parties - HELD THAT:- Both the courts below have ruled against the defendant/petitioner and had held that the trial court had jurisdiction to entertain and decide the suit. The executing court does not sit in appeal over the findings recorded by the trial court or the appellate court as the case may be. The executing court cannot go behind the decree when the issue was specifically framed regarding the jurisdiction and it got decided against the defendant. The defendant cannot be permitted to take the very same ground in execution proceedings by filing an application under Section 47 C.P.C. to contend that the trial court did not have jurisdiction to entertain the suit and, therefore, the decree passed by the trial court was without jurisdiction and the same cannot be executed - there are no substance in the submission of learned counsel for the petitioner/judgment debtor that the decree passed by the trial court was without jurisdiction and, therefore, it cannot be executed.
The second ground that the judgement and decree was passed on the amended plaint which was amended without leave of the court, has no force. The petitioner has filed objection to the amendment application and there is no material on record on the basis of which it can be said that some fraud was played with the trial court and the judgement and decree was obtained as an act of fraud - there are no substance even in the second ground and it is held that the executing court and the revisional court have correctly decided the issue and rightly rejected the objection of the petitioner under Section 47 C.P.C.
Petition dismissed.
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2019 (2) TMI 1999
Levy of GST - Reverse charge mechanism - payment to PWD, Uttarakhand for construction of road - N/N. 13/2017 dated 28.06.2017 - time of supply when advance payment is released to PWD, Uttarakhand - amount deposited with Central Fund i.e Uttaranchal CAMPA and reimbursed by MEA considering as part cost of the road - HELD THAT:- NHPC as the implementing agency delegated the responsibility of completing the project to PWD (construction agency) and a Memorandum of Understanding was made between these two agencies. To implement the project, works contract was allotted by PWD through an open tender to their contractor M/s RG Buildwell Engineering Pvt. Ltd. In view of these facts, it is clear that no GST is payable by NHPC on reverse charge or otherwise on the payments for this project that is/will be made by them to PWD as the issue is squarely covered by the entry serial- 9c of the notification no. 32/2017-CT(R) dated 13.10.2017, as rightly concluded by the Ld. AAR. This issue is not contested by the appellant also. Thus from MEA to NHPC up to the stage of PWD it is an exempt supply between one government entity to other govt entity.
In the present case, M/s NHPC had raised a specific query as to whether they need to pay GST on reverse charge to PWD and to that extent, the ruling was that they are not required to do so. Whether the taxability on provision of works contract will be applicable on the works contract allotted by PWD is not an issue raised in the advance ruling application, Hence, we refrain from going into specifics of the same, thus, without going into the merits, since there was no taxability till the stage of PWD on account of entry 9c of notification 12/2017 as amended time to time, so discussions and findings of the Learned AAR on this issue become irrelevant and hence infructuous and need to be set aside.
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2019 (2) TMI 1958
Reopening of portal for submission of GST TRAN-1 - transitional CENVAT credit admissible as input tax credit or not - HELD THAT:- The Notification dated 10th September, 2018 is not disputed, so far it states that the registered persons filing the declaration in FORM GST TRAN-1 in accordance with subrule (1A), may submit the statement in FORM GST TRAN-2 by 30th April, 2019.
As there is no cause of action to file the petition, the petitioner is not entitled to any of the reliefs claimed in the petition - Petition dismissed.
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2019 (2) TMI 1935
Correction in GST registration certificate - permission to file returns as per provision of the Uttarakhand GST Act, 2017 - permission to submit form GST TRAN-01, through common portal and treat it, filed within time - HELD THAT:- It is settled proposition of law that no one should be left remediless. Since remedy is not available to the petitioner-company, the petitioner- company could not submit its monthly returns and GST TRAN-1 within time solely for the reason that after closure of portal uploading of information is not possible in any way. Besides this, the respondents themselves have allotted defective registration certificate to the petitioner-company and they cannot punish the petitioner-company for their own fault.
This court is of the view that as the petitioner- company could not file its monthly return in regard to payment of GST within time due to no fault of it and the portal got closed and cannot be operated offline, therefore, it is directed that the respondents shall open the portal forthwith so as to enable the petitioner-company to file its monthly returns and GST TRAN-1 within 10 days from today - Petition disposed off.
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2019 (2) TMI 1929
Principles of natural justice - levy of GST as well as penalty - grievances of the writ petitioner is that he has not received any show- cause notice or an opportunity was provided, enabling him to defend his case - HELD THAT:- This Court is of an opinion that the writ petition is fit for remand and accordingly, the impugned order passed by the second respondent in memo dated 22.10.2018 is quashed. The respondents are directed to issue show cause notice, setting out all the details to the writ petitioner, within a period of four weeks from the date of receipt of a copy of this order. On receipt of the show cause notice from the respondents, the writ petitioner is directed to submit their explanations/objections, along with the documents, if any, within a period of two weeks from the date of receipt of the show cause notice and thereafter, the authorities competent shall consider the materials available on record as well as the explanations/objections submitted by the writ petitioner, take a decision and pass orders on merits and in accordance with law, within a period of eight weeks thereafter.
Petition allowed in part.
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2019 (2) TMI 1914
Classification of the product - Odomos - medicament classifiable under sub - heading 3004 90 99, or otherwise? - HELD THAT:- Heading 3808 of Chapter 38 of Customs Tariff Act covers a range of products (other than those having the character of medicaments, including veterinary medicaments-heading 30.03 or 30.04) intended to destroy pathogenic germs, insects, (mosquitoes, moths, Colorado beetles, cockroaches, etc.) mosses and moulds, weeds, rodents, wild birds, etc. products intended to repel pests - the statue is very clear as far as the classification of items intended to repel pests is concerned and same evident from explanatory note to Chapter 38.08 of Customs Tariff.
Thus, the product ‘odomos' achieves its result by odour which makes the conditions unattractive for mosquitoes when coated on human body and accordingly it appears well covered under chapter 38.08 of Customs Tariff Act adopted for the purpose of classification of products under GST Law. Further, the Applicant has been constantly supplying the said product under chapter 38.08 (as per the Jurisdictional report).
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2019 (2) TMI 1908
Classification of imported goods - airsprings - whether classifiable under HSN Heading 8607 (i.e. parts of coach work of railway running stock) and thus covered under Entry No. 241 of Schedule-I of the GST rate notifications or otherwise? - applicable rate of tax under GST.
Whether airsprings imported by the applicant are classifiable under HSN Heading 8607? - HELD THAT:- As per specification provided “In air suspension system, properties of air are used for cushioning effect. Enclosed pressurized air in a rubber below is called airsprings.” Therefore, as per the submission, technical specifications and characteristics mentioned by the party in respect of airspring it appears that the goods in question are air below made of rubber to be used in spring - The jurisdictional AC, CGST Div-II, Noida also submitted that the party’s assumption is not acceptable as the disputed goods are made of rubber and the articles of vulcanized rubber are excluded from Chapter 86 as per Section Note 2(a) to Section XVII. After considering the submissions made by the applicant and jurisdictional office it is observed that it is not appropriate to classify the goods in question under the Heading 8607.
Applicable rate of GST - HELD THAT:- As the answer to the first question is in negative, second question cannot be considered.
Scope of Advance Ruling application - HELD THAT:- The question is out of the purview of the mandate of the Advance Ruling u/s. 95(a) which provides that :- “advance ruling” means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of Section 97 or sub-section (1) of Section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.
Correct classification of goods - applicable rate of tax under GST Notification - HELD THAT:- The classification of the goods in question shall be the same as classified under the Customs Tariff Act, 1975 and shall be interpreted in terms of the Customs Tariff Act, 1975 for classifying any goods under the Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017. Since, the goods in question is classified under Chapter Heading 4016 95 90 under the Customs Tariff, it has to be appropriately classified under the same chapter i.e. 4016 for levying of tax under GST not under the Chapter Heading 8607 - Further, as per specification provided by the applicant “In air suspension system, properties of air are used for cushioning effect. Enclosed pressurized air in a rubber below is called airspring.” Therefore, as per the submission, technical specifications and characteristics mentioned by the party in respect of airspring it appears that the disputed articles are air below made of rubber to be used in airspring. Furthermore, as per the specification “requirement for emergency rubber springs used in airsprings” : The emergency rubber bumper used in the airspring should be manufactured from natural rubber suitably compounded to conform to the requirements stipulated in STR (Schedule of Technical Requirements).
Thus, the process of making compounded rubber is none other than vulcanized rubber. Vulcanization makes rubber much stronger, more flexible, and more resistant to heat and other environmental conditions - the goods in question are made of rubber and the articles of vulcanized rubber which are excluded from Chapter 86 as per Section Note 2(a) to Section XVII, the party’s assumption is not acceptable and the correct classification of the airsprings would be 4016 95 90 and rate as per the Notification No. 1/2017-Central Tax (Rate) will be 18%.
Scope of Advance Ruling application - Whether the applicant can also be eligible for classifying imported goods under HSN Heading 8607 like its competitors? - HELD THAT:- It is again out of the purview of the mandate of the Advance Ruling u/s. 95(a) which provides that “advance ruling” means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of Section 97 or sub-section (1) of Section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.
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2019 (2) TMI 1907
Classification of goods - Vigilance Control Device (VCD) - Diagnostic Terminal (DT) - Master Controller System (MCS) - HELD THAT:- As per provisions of Note 1 of the Chapter 86, the items of following characteristics do not cover in Chapter 86 :
(a) Railway or tramway sleepers of wood or of concrete, or concrete guide-track sections for hover trains (Heading 4406 or 6810);
(b) Railway or tramway track construction material of iron or steel of Heading 7302; or
(c) Electrical signaling, safety or traffic control equipment of Heading 8530.
Thus, from Note 1 of Chapter 86 it is clear that electrical signaling, safety or traffic control equipments or Heading No. 8530 have been specifically excluded from purview of Chapter 86 - Furthermore, sub-heading 8530 includes the items with following characteristics: Electrical Signaling, Safety or Traffic Control Equipment for Railways Tramways, Roads, Inland Waterways, Parking Facilities, Port Installation or Airfields (Other Than Those of Heading 8608). The Goods are being classified under particular tariff item in accordance with General Rule for the interpretation of the Harmonized System. As per Rule 1, The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require.
From the characteristic of the Vigilance Control Device (VCD), Diagnostic Terminal (DT) & Master Controller System (MCS), chapter Notes, Classification Rules and above discussion; it appears that they all fall in Code 8530 10 10 of Customs Tariff Act, 1975 - the rate of GST on the items of sub-heading 8607 is 5% whereas it is 18% of the items of sub-heading 8530.
It is also worth mentioning that the end use of the products by railways cannot be taken as a ground to determine the classification of the goods on question. As per the C.B.I. & C. Circular No. 30/4/2018-GST, dated 25-1-2018, regarding-clarification on supplies made to the Indian Railways classifiable under any chapter, other than Chapter 86. It is clarified that - (a) only the goods classified under Chapter 86, supplied to the railways attract 5% GST rate with no refund of unutilised input tax credit and (b) other goods (falling in any other chapter), would attract the general applicable GST rates to such goods under the aforesaid Notifications No. 1/2017-Central Tax (Rate), dated 28-6-2017, read with Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017, even if supplied to the railways.
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2019 (2) TMI 1905
Levy of GST - grant of Development rights - Valuation Modus Operandi to tax in GST - whole argument of the applicant regarding exemption of development rights from levy of GST hinges on its belief/ contention that the transfer of development rights amounts to sale of land - HELD THAT:- The term immovable property as defined in the CGST/SGST Act includes land, benefits to arise out of land, and things attached to the earth, or permanently fastened to the earth. Section 54 of Transfer of Property Act 1882 defines sale as transfer of ownership in exchange for a price paid or promised or part paid and part promised.
The application for seeking license from the Government for the development of developable land is to be made by RBIPL along with the applicant. EDPL is authorized to communicate with the Govt. on behalf of the RBIPL. The EDPL shall obtain the necessary governmental approval on behalf of RBIPL and associates. All municipal taxes, cesses and other public dues with respect to the developable land shall be paid and discharged by RBIPL. Further, the RBIPL has agreed to deposit the original titled documents of the developable land as guarantee for the performance of secured obligations, meaning thereby that RBIPL is the owner of the developable land - these terms of MOU make it crystal clear that the title of ownership of land vests with the RBIPL. Since RBIPL is the owner of the developable land, mere transfer of certain rights i.e. the development rights does not confer any title or ownership in the developable land upon the applicant.
Hence, the argument that the transfer of Development rights amounts to sale of land under Entry No. 5 of Schedule III appended to CGST Act (Activities or transaction which shall be treated neither as a supply of goods nor a supply of services) is outrightly rejected.
Value and time of supply - HELD THAT:- Notification 4/2018-CGST(Rate), dated 25.01.2018 notified that the liability to pay tax in case of transfer of development rights in exchange of constructed space shall be the date of allotment of constructed complex, i.e., the letter of allotment issued by the developer after the construction is complete. The notification clearly suggests the liability to pay tax on transfer of Development Rights - the value of supply has to be determined in accordance with Notification No. 11/2017 Central Tax (Rate), dated 28 June, 2017 read with notification No. 4/2018 Central Tax (Rate), dated 25 January 2018. The relevant entry for valuation is Sr. No. 3, Heading 9954 read with Para No. 2 of Notification No. 11/2017 Central Tax (Rate), dated 28 June, 2017.
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2019 (2) TMI 1904
Classification of supply - Supply of goods or supply of services - electricity/ electrical energy is treated as supply of goods and intra-states supply thereof - supply of utilities/ leasing are separate supplies or composite supplies? - exemption from payment of CGST in terms of Serial Number 104 Notification No. 2/2017-CT(Rate), dated 28.06.2017 - eligibility of Input Tax Credit.
Electricity - goods or service? - HELD THAT:- The Notification No. 2/2017-Central Tax (rate), dated 28th June, 2017 pertains to goods, the intra-state supply of which is exempted under the GST Act. The Entry No. 104 of this notification is regarding Electrical Energy. This suggests that Electrical Energy is a goods and not a service. There is also no doubt that electricity and electrical energy are one and the same thing - It is therefore, clear that electricity is a goods and not a service.
Having ruled that electricity is goods, we come to the question whether supply of electricity via DG sets is a goods or service. The power backup provided by the Agilent Technologies i.e. the lessee is in the form of a service. The charges for this supply are determined by the lessee as per its convenience. The DG set belongs to the Agilent Technologies, the maintenance charges are also borne by the Agilent Technologies, the expenses record pertaining to the DG set is also maintained by Agilent Technologies. Therefore, the authority has no hesitation in concluding that the provision of electricity supply/power back-up via DG set is in the form of a service and not goods - the electrical supply is liable to GST to the extent it is supplied through DG set.
Whether the supply of electricity and supply of utilities / leasing are separate supplies or composite supplies? - HELD THAT:- In the instant case, the supply is made by a taxable person and the number of supplies are also multiple. But as discussed earlier, the supply of electricity to the extent of it being supplied through grid is exempt from GST and, therefore, the condition of two or more taxable supplies is not satisfied. Further, the supply of utilities and supply of electricity are neither naturally bundled together nor are they supplied in conjunction with each other. Also, neither of the two supplies i.e. utility services and electricity supply can be termed as a principal supply and the other one being a natural ancillary - the supply of utility services and electricity supply are separate supplies - The provision of electric supply by way of DG set forms part of the utility services taxable at 18% whereas the supply of electricity by way of grid is exempt from GST.
Input Tax Credit charged on renting services and electricity - HELD THAT:- It is understood that renting of business premises is indispensable for carrying any business, no matter how small the scale is. It is also admitted that renting of business premises is in the course and furtherance of business as space is required for carrying out the operations relating to business - it is observed that since the grid supplied electricity is exempt from GST, the issue of credit availability does not arise. As regards, the tax on supply of electricity through DG set, the Authority is of the opinion that the applicant is entitled to credit of input tax paid with respect to tax paid on availing the said service.
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2019 (2) TMI 1903
Taxability - lien or mortgage charges and stock transfer fees received by the applicant from the service receiver - taxable under section 9 of Central Goods and Service Tax Act, 2017 and Section 9 of Haryana Goods and Service Tax Act, 2017 or exempt under section 11 of Central Goods and Service Tax Act, 2017 with respect to both agricultural and non-agricultural produce stored and warehoused in the warehouses of the applicant? - HELD THAT:- On perusal of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017, the Advance Ruling Authority reaches to the conclusion that the services in question are taxable services. The Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 provides for Nil rate of tax with respect to loading, unloading, packing, storage or warehousing of agricultural produce. The notification nowhere exempts the charge/mortgage/lien fee and stock transfer fee charged by the applicant from the service recipient in case of agricultural goods from the Goods and Services Tax.
The scope of storage and warehousing services as defined in CBEC Circular No. B/II/1/2002-TRU dated 01.08.2002 does not encompass the mortgaging and stock transfer service - The charge/mortgage/lien fee and stock transfer fee with respect to non-agricultural goods stored and warehoused is liable to tax under the CGST/ HGST Act, 2017.
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2019 (2) TMI 1902
Taxable services or not - provision of services (Manpower Supply) of tube well operator for operation of tube well and booster of drinking and irrigation water supply in various villages - HELD THAT:- As per perusal of the copy of contract, submitted by applicant along with his application, only manpower supply services are to be provided by the applicant and since, no supply of goods is involved, such services qualify as pure services. Further, the said services are being supplied by applicant to Union Territory of Chandigarh as the contract is awarded by Executive Engineer, Project P.H. Division No. 3, Chandigarh functioning under the Department of Engineering of Union Territory of Chandigarh. The functions entrusted to a panchayat under the Eleventh Schedule to Article 243G of the Constitution include Agriculture, Land Improvement, Minor irrigation, Water management, Drinking water, Rural housing, Fuel and Fodder etc and therefore the activities performed by applicant under the said contract are services supplied in relation to any function entrusted to a Panchayat under article 243G of the Constitution.
The provision of services (Manpower Supply) of tube well operator for operation of tube well and booster of drinking and irrigation water supply in various villages covered under Panchayat are exempt being covered under entry at Sr. No. 3 of CGST Notification No. 12/2017-Centra1 Tax (Rate), dated 28th June, 2017.
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2019 (2) TMI 1898
Grant of Anticipatory Bail - fraudulent availment of input tax credit - fake invoices without actual supply of Goods/Services - According to Department the petitioners are adopting a modus operandi whereby they make payment to the suppliers of invoices without movement of goods/services through banking channel and get back such amount after payment of agreed commission to the supplier of fake invoices - Section 132 of the Central Goods and Services Act, 2017 - HELD THAT:- The enactment in question has come into force very recently with a laudable object of one country one tax. Therefore wherever the department finds that certain provisions in the Act is misused by creating fake invoices and input tax credit is being availed without any movement of goods, the same has to be curbed and nipped in the bud to ensure that it does not grow into another mega scam having a direct impact on the economy of this nation. Since the department has collected some prima facie materials , they want to act fast before it becomes a huge racket, failing which the entire economy of this country would weaken and collapse - If the petitioners are conducting genuine business through the above said companies, they can easily prove during the investigation the actual movement of goods, which will all be borne out by documents. If the department is satisfied regarding the same, the department will leave out the companies belonging to the petitioners and proceed further with the investigation.
In the considered view of this Court, in matters of this nature, the department must be given the complete independence to investigate the cases since it involves the national interest. This Court by entertaining an Anticipatory Bail Petition and by imposing certain conditions, should not tie the hands of the department in proceeding further with the investigation since what has been unearthed till now is only the tip of the iceberg and there is a long way to go for the department to find out how long this fake invoices have extended their tentacles.
As argued by the learned counsel for the petitioners, it is true that the entire issue is borne out by documents and once the petitioners co-operate for the investigation by submitting all the relevant documents, they should not be unnecessarily arrested. However, it is a settled proposition of law that this Court while considering a petition for Anticipatory Bail has to necessarily taking into consideration the nature and gravity of the accusation in a given case. When a case involves serious offences, grant of Anticipatory Bail by itself will cause prejudice to the investigation. Where the accused persons are charged of violation of CGST Act, involving colossal loss of revenue to the exchequer and the investigation is at a very nascent stage, prudence demands that this Court should lay of its hands from the investigation and allow complete independence to the prosecuting agency to proceed further with the investigation.
This Court is not inclined to entertain these Anticipatory Bail Petitions - Application dismissed.
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2019 (2) TMI 1807
Public Interest Litigation - closing down all running illegally teer-counters in the State and to provide age limit restrictions for entering into the betting of teer and to ensure that the distance in terms of Section 6 of the Meghalaya Regulation of the Game of Arrow Shooting and the Sale of Teer Tickets Act, 2018 - compliance of various provisions of the Act of 2018 and also to ensure that the State exchequer is not put to any loss of revenue - contention of the petitioner is that many such teer-counters in different parts of the State, especially in Garo Hills and Tura district, are being run without obtaining any license.
HELD THAT:- It appears that the licenses were earlier issued to various owners of different teer-counters under the Act of 1982. Now with the repeal of that Act and enactment of the Act of 2018, licensees of that time are required to obtain fresh license under the Act of 2018. It goes without saying that no such teer-counter can be allowed to run without a valid license. Compliance of Section 6 of the Act of 2018 has to be scrupulously ensured which mandates the teer-counters and bookmakers are required to be located not less than 1000 feet or 300 meters away from the nearest place of worship or educational institution.
The respondent-State is directed to ensure that the sites of all teer-counters in the State are inspected, especially those teer-counters, which were run by earlier licenses and if such teer-counters are found to run without new license, they should be immediately closed down and should be allowed to operate only if they obtain the license and fulfill various requirements under the Act of 2018 especially Sections 6 and 16 - If any operator of teer-counter has an obligation to get himself registered under the Meghalaya Goods and Service Tax Act, 2017, he should be required to obtain necessary registration and make payment of due amount of GST.
Petition disposed off.
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2019 (2) TMI 1757
Profiteering - purchase of flat - allegation that Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- It is clear from the plain reading of Section 171 (1) that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC - On the issue of reduction in the tax rate, it is apparent from the DGAP’s Report that there has been no reduction in the rate of tax in the post GST period, hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On this issue, we observe from the DGAP Report that the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 5.57%, whereas, during the post-GST period (July-2017 to December-2018), it was 7.08%. This confirms that in the post-GST period, the Respondent has been benefited from additional ITC to the tune of 1.51% (7.08%-5.57%) of his turnover and the same is required to be passed on by him to the eligible flat buyers, including the Applicant No. 1. We observe that the computation of the amount of ITC benefit to be passed on by the Respondent to the eligible flat buyers works out to ₹ 1,25,33,555/-.
The said computation of the amount of profiteering worked out by the DGAP is based on the data and information supplied by the Respondent himself. We also take note of the fact that the Respondent has not challenged the said mathematical computation and has agreed to pass on the ITC benefit to the recipients - Hence we observe that the amount of profiteering computed by the DGAP is correct and therefore, we take the view that the provisions of Section 171 (1) of the CGST Act, 2017 have been contravened in the present case as the Respondent had been benefited from additional ITC in the post-GST regime.
The Respondent has profiteered an amount of ₹ 1,25,33,555/- for the period of investigation. Therefore, in view of the above facts, this Authority, under Rule 133 (3) (a) of the CGST Rules, 2017, orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him
Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his “Oyster Grande” project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section - Accordingly, a notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
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2019 (2) TMI 1741
Whether the transaction is import of service or not and it is inter-state supply or not? - HELD THAT:- The Section 7 of IGST Act determines whether a transaction is an Inter-state supply or an Intra-state Supply. Sub-section 4 of Section 7 of IGST Act states the supply of services imported into India shall be treated as Inter-state supply. Clause (c) of sub-section 5 of Section 7 of IGST Act states that supply of goods or services or both in the taxable territory, not being an intra-State supply and not covered elsewhere in this section shall be inter-state supply. Therefore, the said transaction qualifies as import of service and it is inter-state supply.
Whether the applicant can be deemed as the recipient of the service or not? - HELD THAT:- As per sub-section 3 to Section 5 of IGST Act read with sub-section 1 of Section 5 of IGST Act, on inter-state supply of goods or services, by way of notification the Government may notify specific category of services where the recipient of service will be considered as the person liable to pay tax - In the present case, the service of transport by vessel is for the goods imported by the applicant. The consideration for both goods and also for service i.e. transport of the same by vessel, is paid by the applicant. The applicant's view that they are paying only for goods and not for transport of the same is incorrect as the said consideration paid for the transaction is inclusive of freight also. Therefore, the applicant is the recipient of both goods and services.
Whether the applicant is liable to pay tax on the transaction referred under reverse charge mechanism or not? - HELD THAT:- An importer is required to pay IGST on the ocean freight in terms of Notification No. 10/2017-Integrated Tax (Rate), dated 28-6-2017 read with Notification No. 8/2017-Integrated Tax (Rate), dated 28-6-2017. There is no exemption available under the GST provisions for payment of IGST on ocean freight where IGST is paid on the goods imported.
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2019 (2) TMI 1740
Liability for collection of TCS - Aluminium ladders -Generally used for Domestic / House -hold purpose. Made of aluminium metal and corners are concealed with plastic caps - Aluminium industrial ladders - Aluminium is majorly used with other Metals (S.S & M.S) used for tools and additional support - HELD THAT:- In the present case the goods under question, i.e., the Aluminium ladders -Generally used for Domestic / House -hold purpose, do not fall under the entry no 186 of Schedule II of Notification 01/2017 of IGST Act attracting the tax rate of 12% (6%CGST+ 6% SGST) as contested by the Applicant. The Aluminium Ladders, meant for Household purpose are not the class of goods akin to the HSN Code 7615 of Table, kitchen or other household articles. These are meant to be used at any place, and necessarily not be classified akin to kitchen or household articles basing on the description, purpose and use of the goods.
Irrespective of the end use of the ladders whether for domestic purpose or for Commercial use, Aluminium ladders come under HSN code 7616, "Other articles of Aluminium" and accordingly attract Tax rate of 18%.
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2019 (2) TMI 1739
Input tax credit - credit of GST paid on goods and services used as inputs in execution of “Works Contracts” specifically in execution of Road work contracts to Government Engineering Department - on which type of goods and services the ITC is not eligible? - HELD THAT:- The applicant is providing work contract service for construction of road and the issue is to be clarified whether they are restricted to claim input Tax Credit in terms of clause (c) or (d) of sub-section 5 of section 17 of CGST ACT 2017 - ITC for works contract can be availed by the applicant as he is in the same line of business and entitled to take ITC on the tax invoice raised by his supplies as his output is works contract services.
Restriction of ITC is applicable as per Section 17 (5)(d) - HELD THAT:- Section 17 (5)(d) reads as “Goods or Services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business” - Even as per the provision of Section 17(5) (d), this authority concurs with the opinion of the applicant that he does not fall under this ineligible category.
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2019 (2) TMI 1738
Power to arrest - requirement of authorization from Commissioner before such arrest - reasons to believe - illegal input tax credit - fake transactions - Section 69 and section 70 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- When the summons issued to the petitioners are examined on a conjoint reading of section 69 and section 70 of the Central Goods and Services Tax Act, 2017, it becomes apparent that under section 69 it is the Commissioner who, if he has reasons to believe, can by an order authorize any officer of Central Tax to arrest an assessee. Therefore, the Senior Intelligence Officer who has issued summons to the petitioners cannot arrest the assessee before the Commissioner records his satisfaction on “reasons to believe” and pass an order authorizing him to affect arrest of the assessee.
These writ petitions are disposed of with a direction to the petitioners that they shall appear before the Senior Intelligence Officer who has issued summons to them as and when called and, of course, they shall not be arrested on the first day when they appear before him. It needs no reiteration that the Senior Intelligence Officer shall act fairly and his actions must demonstrate fairness in action.
Petition disposed off.
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2019 (2) TMI 1720
Grant of Regular Bail - offence under Sections 132(1)(b)(c)(d)(f)(i) & (i) of the Central Goods and Service Tax Act, 2017 read with Section 132(1), (i) & (iv) of Central Goods and Service Tax Act, 2017 - HELD THAT:- As per the prosecution story, accused in connivance with each other had created thirty five fake firms and after making fake entries had issued invoices involving tax amount of more than Rupees ten crores. The firms were misused for evading G.S.T input taxes by the petitioners.
Since, bail petition filed by the co-accused has been dismissed by this court, this petition is also liable to be dismissed.
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