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GST - Case Laws
Showing 81 to 100 of 156 Records
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2020 (2) TMI 672
Validity of notice issued n Form GST-MOV-10 - As per the interim order, detained goods with vehicle have already been released after depositing the GST with penalty - Section 129(3) of GST Act - HELD THAT:- By way of an ad-interim-order, we directed the applicant herein to deposit an amount of ₹ 50,40,972/- towards tax, with the respondent No.2 and an amount of ₹ 50,40,972/- towards the penalty, in the form of the Bank Guarantee of any Nationalized Bank - It is not in dispute that our order, dated 10.01.2020, has been fully complied with by the applicant herein. However, surprisingly, a notice dated 5th February, 2020, in Form GST-MOV-10, came to be issued. In all, four separate notices, in Form GST-MOV-10, came to be issued for four different vehicles.
The understanding of the authority is that since the notice under Section 129(3) of the Act is dated 31st December, 2019, the applicant ought to have deposited the amount, towards tax and penalty, within 14 days thereof, and the failure, to deposit such amount, would entail the consequences of notice in Form GST-MOV-10 - there is no question of looking into Section 129(6) of the Act, more particularly, when this Court has passed a specific order dated 10th January, 2020.
Except Section 129(6) of the Act, there is no other ground for the purpose of issuing notice in Form GST-MOV-10. If that be the case, then we have no hesitation in quashing the Form GST-MOV-10 notice straight way - Application allowed.
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2020 (2) TMI 671
Stay on recovery of balance amount - Order of National Anti Profiteering Authority - petitioner has already deposited the ₹ 16,58,32,723/- out of the ₹ 89,73,16,384/- - HELD THAT:- Interim relief granted.
This interim order shall not come in the way of the National Anti Profiteering Authority in cases where it has suo moto taken action. We also observe that prima facie, it appears to us that the limitation of period of six months provided in Rule 133 of the CGST Rules, 2017 within which the authority should make its order from the date of receipt of the report of the Directorate General of Anti Profiteering, appears to be directory in as much as no consequence of non adherence of the said period of six months is prescribed either in the CGST Act or the rules framed thereunder.
List on 20.05.2020.
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2020 (2) TMI 670
Release of goods alongwith the vehicle - inquiry sought by an independent agency against the role of respondent no. 4 on account of his having exercised the powers in an illegal and arbitrary manner - Punjab GST Act, 2017 - HELD THAT:- Though the petitioner has tried to make out a case of having made an innocuous prayer of seeking release of goods under the provisions of Section 129(1) of the Act, the copious material produced by the respondents shows the modus operandi being employed for the purpose of evasion of the tax liability under the provisions of the Act and on that count the status of the petitioner in seeking release of the goods claiming himself to be the owner, if at this stage is recognized by the respondents, is likely to prejudice the plea/stand which has been taken by the respondent department.
The status of the petitioner as owner of the goods is in question inasmuch as while the petitioner relies on E-way bill dated 7/12/2019 for claiming himself the consignee, the claim of the respondents is that the goods already stand delivered insofar as the E-way bill dated 7/12/2019 is concerned - Therefore, the claim of the petitioner as owner qua the goods which are loaded on the detained vehicle has to be determined by the competent authority in accordance with law and the said aspect cannot be preempted by directing release of the goods to the petitioner.
Petition dismissed.
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2020 (2) TMI 669
Grant of Regular Bail - offences u/s 132(1)(b) and 132(1)(c) of the Central Goods and Services Tax Act, 2017 - The applicant is arrested and almost 55 days are over and complaint is yet not filed - Maximum sentence is of 5 years - HELD THAT:- Considering the offence as alleged in the FIR and also considering the nature of allegations made in the FIR, I am of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail - Hence, the application is allowed and the applicant is ordered to be released on bail.
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2020 (2) TMI 668
Interest on delayed payment of tax - attachment of bank accounts - whether interest on delayed payment of tax as contemplated under Section 50 of the Central Goods and Services Tax Act, 2017, is automatic or the same is to be determined, after considering the explanation offered by the assessee? - HELD THAT:- Though the liability fastened on the assessee to pay interest is an automatic liability, quantification of such liability certainly needs an arithmetic exercise after considering the objections if any, raised by the assessee. It is to be noted that the term "automatic" does not mean or to be construed as excluding "the arithmetic exercise". In other words, though liability to pay interest arises under section 50 of the said Act, it does not mean that fixing the quantum of such liability can be unilateral, especially, when the assessee disputes the quantum as well as the period of liability. Therefore, though the liability of interest under section 50 is automatic, quantification of such liability shall have to be made by doing the arithmetic exercise, after considering the objections of the assessee.
Maintainability of writ appeal - Whether the dismissal of the writ appeals by Dr.Vineet Kothari,J. is correct or whether those writ appeals ought to have been entertained for further hearing? - HELD THAT:- A careful perusal of the direction issued by the Writ Court does not indicate anywhere as to how the Revenue is prejudiced by the said order, especially when the Revenue is given liberty to pass an order in a manner known to law and communicate the same to the petitioners, after considering their objections. Thus, the Writ Appeals preferred against the said orders of the Writ Court, as observed by Dr.Vineet Kothari,J., are wholly unnecessary - Therefore, I am in agreement with the view expressed by Dr.Vineet Kothari,J., as I find that entertaining the writ appeals is not warranted, since the Writ Court has not determined the interest liability of each petitioners against the interest of the Revenue in any manner and on the other hand, it only remitted the matter back to the concerned Officer to determine the quantum of such liability. Thus, the second question with regard to the maintainability of the writ appeals is answered accordingly.
Appeal dismissed.
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2020 (2) TMI 667
Profiteering - supply of Xiaomi-Ml Power Bank 2i Red (10000 mAh) - allegation that Respondent had not passed on the benefit of this reduction in the GST rate to his recipients by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act 2017 - penalty - HELD THAT:- The allegation of the Applicant No. 1 is that the Respondent had maintained the same selling price in respect of supplies of the said Power Bank before and after coming into force of Notification No. 24/2018-Central Tax (Rate) dated 31.12.2018 and he had not passed on the benefit of reduction in the GST rate to the Applicant No. 1 and other recipients. In this context, we have perused the screenshots of price of the product on the official web portal of the Respondent as on 19.12.2018 and 03.01.2019 and we observe that the said Power Bank was being classified under the HSN 8507 60 00 and supplies of the said Power Bank, described as “Lithium-ion Batteries”, were being effected in line with entry at S. No. 376AA, of Notification No. 18/2018-Central Tax Rate dated 26.07.2018, whereby the GST being levied @ 18% w.e.f. 26.07.2018.
The entry after coming into force of Notification No. 24/2018-Central Tax (Rate) had no effect on the tax rate leviable on the said Power Bank, HSN 8507 60 00, being supplied by the Respondent. Hence, the present case is not a case of profiteering as had been alleged by the Applicant No. 1. The scope of this investigation/proceedings is limited to the issue of profiteering only and not to the issue of classification.
The allegation of the Applicant No. 1 is not tenable and therefore the application alleging violation of provisions of Section 171 of the CGST Act, 2017 is hereby dismissed.
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2020 (2) TMI 622
Grant of interim relief - the impugned order of the National Anti-Profiteering Authority (NAPA), Respondent No. 2 herein, was passed not pursuant to any written complaint, as is mandated by law, but by the NAPA suo moto assuming jurisdiction - HELD THAT:- The Court is of the view that the Petitioners have made out a prima facie case for the grant of an interim relief as prayed for and that the balance of convenience in granting interim relief is also in the favour of the Petitioners.
Till the next date of hearing, there shall be a stay on the impugned order dated 10th December, 2019 of the NAPA - List before Roster Bench on 20th May, 2020.
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2020 (2) TMI 621
Maintainability of petition - appeal pending before Additional Commissioner - HELD THAT:- It appears that a statutory appeal filed by the writ petitioner under section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017, is pending before the Additional Commissioner, Grade-2, Appeal-2, Commercial Tax / SGST, Kanpur, being the respondent no. 4 - Since a statutory appeal has been preferred by the writ petitioner, he ought not to have approached the writ Court.
Petition dismissed.
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2020 (2) TMI 620
Grant of anticipatory bail - GST evasion - FIR lodged - main point which has been emphasized by the learned counsel for the applicant is that because no proper notice has been served upon the applicant demanding outstanding amount of GST, therefore, there was no necessity of the accused being arrested - HELD THAT:- This is not a fit case in which indulgence of granting anticipatory bail should be exercised because it has come on record that the applicant's firm was found indulging in running business from bogus address and a huge transaction is shown to have been done without there is any such big transaction reflected from the account of the firm. The argument of the learned counsel for the applicant that notice is required to be issued to the accused before lodging FIR also does not sound to be a reasonable view because there are offence alleged to have been committed under sections 420, 467, 468, 471, 34 and 120B IPC also regarding which no such notice is required to be sent. It is found to be a case of economic fraud in which normal course adopted by the Courts should be not to grant stay against arrest because investigation might require custodial interrogation as well. This court is not to be guided only by the fact that apart from IPC, offence under U.P. Act is also said to have been committed which requires notice to be issued to the accused and in totality of the matter this Court finds that there is no genuine ground to grant relief of anticipatory bail to the accused-applicant in this matter.
Looking to the aforesaid fact, taking into consideration the gravity of accusation, and there being possibility of his fleeing from justice, without expressing any opinion on the merits of the case, this Court does not find good ground for enlarging the applicant on anticipatory bail in this case.
The anticipatory bail application is rejected.
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2020 (2) TMI 593
Exemption from GST - Composite Supply or not - service of crushing food grains - The Government will send to the Applicant the whole, unpolished food grain for processing. The Applicant will return the grain after crushing. - SI No. 3 or 3A of Notification No 12/2017 CT (Rate) dated 28/06/2017 (corresponding State Notification No. 1136 - FT dated 28/06/2017) - Circular No. 51/25/2018-GST dated 31/07/2018 - HELD THAT:- The Applicant intends to deliver the crushed food grains packed in the manner the recipient requires. The packing material is supplied by the Applicant. The Applicant is, therefore, making supply of a bundle consisting of the service of crushing the grains and supply of materials required to pack the crushed grains, where the former is the predominant supply. They are supplied in conjunction with each other in the ordinary course of business as food grain cannot be transported without proper packing. It is, therefore, a composite supply of goods and services where service of crushing food grains is the principal supply and providing packing materials is ancillary to it - The Applicant intends to make the composite supply to the State Government. The recipient is, therefore, the State Government.
It will be an activity in relation to a function entrusted to a Panchayat under article 243G of the Constitution, and its supply to the State Government should be exempt under Sl No. 3A of the Exemption Notification, provided the proportion of the packing materials in the composite supply in value terms does not exceed 25%.
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2020 (2) TMI 592
Supply or not - contracts for supply of goods and supervisory services - import of services - whether the transaction between M/s. Hitachi Power Europe GmbH and its project office located at Meja Thermal Power Project, Allahabad is a 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, the transactions between the foreign company and project office is an intra-company affair.
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" - 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 account of the project office.
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2020 (2) TMI 584
Levy of penalty and confiscation of goods - section 129(1) of the GST Act - writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount - HELD THAT:- It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SSYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged - Application disposed off.
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2020 (2) TMI 556
Concessional Rate of GST - manufacture of laboratory medical equipment like Autoclaves, Incubators, Rotary Vacuum Evaporators, etc., and supply the same to their distributors who are not engaged in scientific research of any type - N/N. 45/2017 & 47/2017 - validity of certificates issued by end users.
HELD THAT:- The applicant does not supply goods to end users who undertake or are engaged in the scientific research. The goods are supplied to their distributors only. The applicant has submitted that the end-user institutions, to whom goods are supplied by their distributors, are mainly included in Sr. No. 2 of Notification No. 45/2017-C.T. (Rate) dated 14.11.2017. In respect of institutions mentioned at Sr. No. 2, the said notification clearly states that the said institutions should be registered with the Government of India in the Department of Scientific and Research, which- (i) produces, at the time of supply, a certificate to the supplier, from the head of the institution, in each case, certifying that the said goods are essential for research purposes and will be used for stated purpose only and that, the said goods shall not be or sold by the institution for a period of five years from the date of installation - The said notification requires the said certificate to be issued to the supplier, who in the subject case, is the distributor and not the applicant. Thus it is clear that the applicant does not satisfy the conditions of the said Notification No. 45/2017 - thus, the applicant cannot sell their product to their dealers / distributors by charging GST @ 5.00% as per Notification Nos. 45/2017 - C.T. (Rate) 47/2017 S.T. (Rate), both dated 14.11.2017.
Can a certificate issued by the end user (scientific research organization) mentioning the name or the manufacturer (WE in this case) & the name of the seller (our distributor) be held valid to enable the applicant to invoice their product to their dealer at concessional rate of GST @ 5.%? - HELD THAT:- In the instant case, the question raised by the applicant is not pertaining to any of the matters mentioned in Section 97 (2) of the GST Act - Section 97(2), which encompasses the questions, for the ruling by this Authority does not deal with the issue of validity of certificates used by end-users of subject products. Hence, it is held that this authority does not have jurisdiction to pass ruling on such matters.
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2020 (2) TMI 555
Classification of goods - transformers supplied to Indian Railways - to be be classified as ‘Parts of railway or tramway locomotives or rolling stock’ under HSN ‘8607’ or the transformers shall be categorized under HSN 8504? - HELD THAT:- The classification of goods under Chapter Heading 8607 does not include ‘Electrical transformer’. It only refers to parts of railway such as bogies, bissel-bogies, axels, wheels, brakes, hooks and parts thereof, in a general way; whereas, Chapter Heading 8504 clearly includes ‘Electrical transformers, static converters (for example, rectifiers) and inductors’. Note 2 (f) to Section XVII mentions that the expressions “parts” and “parts and accessories” do not apply to electrical machinery or equipment (Chapter 85), whether or not they are identifiable as goods of this Section - Thus from a reading of Note 2 (f) to Section XVII of the GST Tariff and Note 2 to Chapter 86 of the GST Tariff, the applicant’s product, ‘transformers’ are classifiable under HSN 8504.
Circular No. 30/4/2018-GST on January 25, 2018 by the Government of India, Ministry of Finance, Department of Revenue (Tax and Research Unit), New Delhi has issued clarification on classification of supplies made to the Indian Railways classifiable under any chapter, other than Chapter 86 - Therefore, it is very clear that, any product other than those covered under Chapter 86, supplied to the railways would not qualify for the HSN 8607 and are not to be considered as a parts of railway coaches, even if supplied to the railways. Entry 8607 is very restrictive entry for the purposes of consideration of goods to be classifiable as parts of railway bogies to avail the benefit of reduced rate of taxes.
Transformers, though used in Railway coaches, cannot be called as parts of railway bogies under Chapter Headings 8607 of the Tariff, due to the specific HSN available for transformer and therefore, the Entry no.241 of Schedule 1 of Notification No. 1/2017 C.T. (Rate) dt. 28.06.2017 does not applies to subject Transformers - Transformers, manufactured and supplied for use in railway, locomotives are classifiable under HSN 8504 and not under HSN 8607. Hence, rate of tax thereon is applicable as per the Sr. no. 375 of Schedule III of the Notification 1/2017 C.T. (Rate) dt. 28.06.2017 @ 18% under GST ACT w.e.f 01.7.2017.
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2020 (2) TMI 554
Levy of GST - sale of Transferable Development Rights (TDR)/ Floor Space Index (FSI) received as consideration for surrendering the joint rights in land in terms of Development Control Regulations - Classification under GST laws - rate of GST - Circular F. No. 354/32/2019-TRU dated the 14th May, 2019, the Government of India, Ministry of Finance, Department of Revenue (Tax Research Unit), New Delhi.
HELD THAT:- GST is payable at the rate of 18% (9% + 9%) on transfer of development rights or FSI (including additional FSI), under Sl. No. 16, item (iii) of Notification No. 11/2017 - Central Tax (Rate) dated 28-06-2017 (Heading 9972).
The transactions of transfer of development rights/AdditionaI FSI are taxable under GST Laws @ 18% (9% CGST+ 9% SGST) under Sl. No. 16, item (iii) of Notification No. 11/2017 - C.T. (Rate) dated 28.06.2017 (Heading 9972).
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2020 (2) TMI 553
Rate of GST - restaurant services - Supply of goods or supply of services - Sr. No. 7, Notification No. 11/2017-CT(Rate) dated 28th June, 2017 - HELD THAT:- The supplies of food and non-alcoholic beverages provided in a restaurant shall be classified as a supply of services and the provisions of the GST law shall apply to such supplies accordingly.
As per Sr. No. 7(iii) of Notification No. 11/2017-CT(Rate) dated 28.06.2017, as amended, supply of food or drinks in a restaurant for consumption within the restaurant premises or away from the restaurant premises, where the restaurant is located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes with a tariff “seven thousand five hundred rupees and above per unit/room per day or equivalent for any unit/room in the premises, the applicable rate of GST will be 18% - there are no hesitation in holding that the applicant restaurant is located in the same premises as JW Marriot Hotel having rooms with a tariff of seven thousand five hundred rupees and above, per unit/room per day or equivalent for any unit/room and applicant will be supplying food or drinks for consumption within the JW Marriot Hotel premises.
The applicant must discharge its GST liability @ 18% (9% each of CGST and SGST) as per Sr.No. 7(iii) of Notification No. 11/2017-CT(Rate) dated 28.06.2017, as amended.
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2020 (2) TMI 552
Classification of supply - supply of services or not - amount recovered from the employees towards car parking charge payable to Shantiniketan Properties Private Limited (building authorities) - pure agent services - valuation of the services - input tax credit.
HELD THAT:- As per the letter dated 28th August, 2018, addressed to the applicant issued by the M/s. Shantiniketan Properties Private Limited (building authorities), there is a Rent Agreement entered into between the applicant and the building authorities and the above referred letter is issued in response to the additional parking space sought by the applicant. The initial Rent agreement copy is not provided by the applicant. Further as per the "Employee Handbook" provided by the applicant "the amount to be recovered from monthly salary of employee availing the parking slots is around INR 1500 per month and INR 500 per month for a four wheeler and two-wheeler respectively". However we notice that this amount shown in the Employees Handbook is not tallying with the details of "amount recovered from the employees" provided by the party - Further, the 'trail of financial transactions to clarify the "pure agent" status of the company', as promised by the authorized representative of the applicant at the time of personal hearing, was also not provided by the applicant.
In the absence of requisite documents, as discussed in above paras, no ruling can be given on the questions asked by the applicant - application for advance ruling disposed off.
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2020 (2) TMI 551
GST liability under Reverse Charge (RCM) - Providing security services to university - Applicability of GST N/N. 29/2018-Central Tax (Rate), dated 31-12-2018 - HELD THAT:- The applicant being only registered as a Tax deductor under Section 51 of the CGST and CGGST Act till 24-6-2019 and having no other GSTIN as supplier of goods or services, would not be liable for GST under reverse charge, in view of the exclusions as stipulated under proviso to Notification No. 29/2013-Central Tax (Rate), dated 31-12-2018. The liability to GST in such case would be with the service provider viz. the security agency under Forward charge.
However with effect from 25-6-2019. the applicant having been registered as a regular dealer and normal taxpayer, holding another GSTIN would be liable to GST under Reverse charge being the recipient of supply of Goods or Services or both under sub-section (3) or sub-section (4) of Section 9, or under sub-section (3) or sub-section (4) of Section 5 of the Integrated Goods and Services Tax Act. It is also noteworthy to mention here that the applicant is not engaged in providing services by way of pre-school education and education up to higher secondary school or equivalent.
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2020 (2) TMI 550
Classification of supply - composite supply of works contract or not - whether classified under Entry (vi) or Entry (iv) to Serial No. 3 of the CGST Rate Notification read with the UPGST Rate Notification - rate of GST - Rate of GST with respect to services rendered by the sub-contractors.
Whether the "composite supply" of "works contract" provided by the applicant to NHAI shall be classified under Entry (vi) to Serial No. 3 of the CGST Rate Notification read with the UPGST Rate Notification liable to effective rate of GST @ 12% including CGST and UPGST? - Whether the "composite supply" of "works contract" provided by the applicant to NHAI shall also be classified under Entry (iv) to Serial No. 3 of the CGST Rate Notification read with the UPGST Rate Notification liable to effective rate of GST @ 12% including CGST and UPGST? - HELD THAT:- The installation of ITS (Intelligent Transport System) is part and parcel of the construction of road transportation system for use by general public and the supply made by the applicant is more appropriately classified under Entry (iv) to Serial No. 3 of the CGST Rate Notification rather than Entry (vi) of the said Notification.
Whether the rate of GST with respect to the services rendered by the sub-contractors to the main contractor i.e. the applicant would be applicable @ 12% in view of Entry (vi) and (iv) of the CGST Rate Notification read with the UPGST Rate Notification or @ 18%? - Section 95(a) of CGST Act, 2017 - HELD THAT:- Any person/applicant can seek advance ruling in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by him. However, in the instant case the applicant wishes to know the GST rate for the sub-contractor providing input services to them, which is outside the [purview] of Advance Ruling - no ruling can be issued on this question.
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2020 (2) TMI 549
Supply of services of transmission or distribution of electricity - Deposit Work undertaken by Applicant, integral part of said services or not - composite supply of services - ancillary services to the principal supply or not - exemption given under Entry No. 25 of the exemption notification - input tax credit.
HELD THAT:- For a supply to be consider as a composite supply, its constituent supplies should be so integrated with each other that one is not supplied in the ordinary course of business without or independent of the other. In other words they are naturally bundled. The concept of the "Naturally Bundled", used in Section 2(30) of the CGST Act, 2017, lays emphasis on the fact that the different element in a composite supply are integral to the overall supply and if one of the element is removed the nature of supply will be affected.
In view of the clarification issued under the Circular No. 34/8/2018-GST, dated 1-3-2018, issued vide F. No. 354/17/2018, it is observed that the deposit work undertaken by the applicant are not an integral part of the supply of services of transmission or distribution of electricity and the applicant is not eligible to avail the exemption from levy of GST under Entry No. 25 of Notification 12/2017-Central Tax (Rate), dated 28-6-2017 bearing description "Transmission or distribution of electricity by an electricity transmission or distribution utility" with respect to the non-tariff charges recovered from their customers.
Input tax credit - HELD THAT:- The immovable property created by the applicant does not falls under the category of "plants and machinery" therefore they are not eligible to claim Input Tax Credit.
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