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GST - Case Laws
Showing 21 to 40 of 218 Records
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2021 (1) TMI 1194 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of goods - GST rate - Popcorn - applicability of N/N .01/2017-Central Tax (Rate) dated 28.06.2017 amended till date - HELD THAT:- It is observed that the product in question i.e. 'POP CORN' is manufactured from maize corn by heating in an electric kettle and due to the heat of kettle, they turn into puffed corns/popcorns and then to make it palatable other ingredients like salt and turmeric powder are added to it and a negligible quantity of oil is also used for the purpose of sticking the salt and turmeric on the maize/corn. Thus it is a ready to eat prepared food and fits the description as 'Prepared foods obtained by the roasting of cereal'. This description attracts classification under Chapter Sub-Heading 1904 10 of the First Schedule to the Customs Tariff Act, 1975. Since it is not Corn flakes (tariff item 1904 10 10), Paws, Mudi and the like (tariff item 1904 10 20) or Bulgur wheat (tariff item 1904 10 30), it will fall under the residual tariff item 1904 10 90 of the First Schedule to the Customs Tariff Act, 1975.
The HSN code of the product namely “Popcorn” is 19041090 attracting rate of tax @ 9% each under Central and State Tax (cumulatively 18%) as per Sl. No. 15 of Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017, as amended.
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2021 (1) TMI 1193 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH
Scope of Advance Ruling application - Admissibility of ITC - procurement of the concerned inputs if the procedure as elaborated, is adopted by the applicant in respect of inward supply of scrap and sponge iron used by the applicant for manufacture of M.S. billets - procedure adopted by the applicant and the documents/records maintained by the applicant is sufficient compliance of the conditions and restrictions for input tax credit as given under the GST Acts - HELD THAT:- The applicant's question whether the procedure adopted and the documents/records maintained by applicant can be deemed to be a sufficient compliance of conditions and restrictions for admissibility of input tax credit of tax paid on inward supply of local scrap and sponge iron used in the manufacture of M.S. billets.
This authority is of view that the issue is technical/procedural in nature and is not covered by any of the clauses of Sec. 97(2).
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2021 (1) TMI 1183 - ORISSA HIGH COURT
Seeking grant of Bail - fake invoices - bogus ITC - non-existent firms - dummy sales - availment of irregular credit - offence under Sections 69 read with clauses (b), (c) & (1)1 of Section 132 of the Odisha GST Act, 2017 - HELD THAT:- Considering the submissions made, facts and circumstances of the case, length of his detention in custody and nature of accusation, it is directed that the petitioner be released on bail with some stringent terms and conditions as deemed just and proper by the learned SDJM, Rourkela and GST Enforcement Unit, Jajpur, Jajpur Road, functioning under the Commissionerate of CT and GST, Odisha with the conditions imposed.
Bail application allowed.
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2021 (1) TMI 1168 - COMMISSIONER OF GST (APPEALS), JAIPUR
Refund of accumulated ITC on account of Inverted Tax Structure - application filed within the time limitation or not - Section 54(3) of the CGST Act, 2017 - HELD THAT:- The adjudicating authority has rejected the refund claim of the appellant given remarks in the RFD-06 that the claimant is agreed with the show cause notice that he has no objection with respect to rejection of their refund claim. Therefore, the rejection of refund claim of the appellant is correct and proper as appellant was himself agreed with the reason of show cause notice issued by the adjudicating authority.
The appellant has taken a plea that since GSTR-3B was declared as valid return under Section 39 of the CGST Act, 2017 Vide Notification No. 49/2019-Central Tax, dated 9-10-2019 hence, application of refund was duly filed by him before expiry of two years from the relevant date when the said notification came into force on 9-10-2019; Therefore, the refund application filed by him within 2 years from the date of 9-10-2019 is valid application and not a time barred application - this notification has given effect from the retrospective effect i.e. 1-7-2017 and accordingly Rule 61(5) of CGST Rules, 2017 providing the GSTR-3B is declared as valid return under Section 39 of the CGST Act, 2017.
On going through the provision under Section 54 of the CGST Act, 2017, it is found that the relevant date has been defined in sub-section (14) of Section 54 of the CGST Act, 2017 - the refund application filed by the appellant for the period October, 2017 to December, 2017 is clearly time barred as the same was filed by the appellant on 5-2-2020 i.e. after expiry of 2 years from the relevant date as mentioned in sub-section (14) of Section 54 of the CGST Act, 2017 read with sub-section (1) of Section 54 of the CGST Act, 2017.
The Adjudicating Authority has taken a view that formula applied for calculation of Net ITC refund there is no such refund was available to the appellant. In view of provisions of Rule 89(5) of CGST Rules, 2017 - the appellant has not properly gone through the provisions of Section 54 of the CGST Act, 2017 the date and time limit has been clearly mentioned in Section 54(1) read with sub-section (14) of Section 54 of the CGST Act, 2017. Therefore, the submission of the appellant that time limit has not been specifically mentioned on the refund of unutilized ITC is incorrect and not acceptable.
The refund application has been filed by the appellant on account of ITC accumulated due to Inverted Tax Structure whereas the appellant stated in the appeal that he has closed his business due to this reason the IGST paid in cash on import of goods is lying unutilized by him - the appellant has filed their refund claim in wrong category as it is not a case of Inverted Duty Structure as given in the provision under Section 54(3) of CGST Act, 2017.
The impugned order passed by the Adjudicating Authority is proper and correct - Appeal dismissed.
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2021 (1) TMI 1152 - COURT OF SESSIONS FOR GREATER MUMBAI
Grant of anticipatory bail - Fabrication of documents with intention to avail and utilize inadmissible 'Input Tax Credit' and to avail the export benefits - section 132(1)(b, 132(1)(c) and Sec. 132(1)(e)(e) of CGST Act, 2017 - HELD THAT:- As per say of the respondent, present applicant, his father and brother have purchased goods worth ₹ 2.47 crores from M/s. Neha Impex and M/s. Rohini Impex. These two firms in turn have purchased, the goods from M/s. Mahalaxmi Traders. As per investigation till date M/s. Mahalaxmi Traders is not in existence. Further, prima facie record reveals, that the firms and companies of the applicant which are run by him along with his father and brother has evaded tax to the tune of ₹ 12.5 crores. Moreover, as reflected by statement of Sachin Gaiwkad he is not owner/proprietor of M/s Neha Impex. Further statement of Jagdish Bhikaji Chouhan, it is transpired that he is dummy proprietor of M/s. Rohini Impex.
Considering the huge amount of tax evasion which has caused loss to the public exchequer, thorough investigation is required. Apart from this present applicant cannot pray for parity, while considering his prearrest bail on the ground that his father and brother are granted regular bail by the Addl. Chief Metropolitan Magistrate, as the parameters for consideration of regular bail and anticipatory bail are different.
Bail application dismissed.
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2021 (1) TMI 1143 - MADRAS HIGH COURT
Seeking a direction to the respondents to unblock and make available the credit in the electronic credit register for the purposes of Goods and Service Tax - HELD THAT:- This writ petition is pre-mature since no representation has been made to the appropriate authorities seeking relief and this ought to have been done prior to approaching this Court with this Writ Petition.
Petition closed.
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2021 (1) TMI 1135 - ORISSA HIGH COURT
Recovery of service tax - non-payment of Service Tax on Taxable Services - petitioner did not reply to SCN - HELD THAT:- It is directed that the Petitioner, as undertaken before this Court by learned counsel for the Petitioner, will positively file its reply to the SCN dated 14th October, 2020 on or before 8th February, 2021. In that event, after giving the Petitioner an opportunity of hearing, the order on such SCN shall be passed by the Opposite Party not later than 15th March, 2021 and communicated to the Petitioner not later than 22nd March, 2021.
Petition disposed off.
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2021 (1) TMI 1132 - ALLAHABAD HIGH COURT
Maintainability of appeal - time limitation - penalty order was served on the driver of the vehicle and not on the petitioner against whom that order was passed - Section 129 of Uttar Pradesh Goods & Services Tax Act, 2017 - HELD THAT:- Reference has been made to the recital made in the appeal order itself wherein it has been clearly recorded that order dated 06.09.2018 was served on the person in-charge of the vehicle which would be the driver and not the appellant.
No useful purpose would be served in keeping the present petition pending or calling for counter affidavit at this stage, the present petition is allowed.
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2021 (1) TMI 1100 - AUTHORITY FOR ADVANCE RULING, ODISHA
Classification of supply - Works Contract Services or not - activities of supply installation, operation and maintenance of Greenfield Public Street Lighting System (GPSLS) carried out by the Applicant - levy of GST under Entry 3(vi) of Notification No. 11/2017-CT(Rate) dated 28 June 2017 (as amended) - inclusion of capital subsidy received/receivable by the applicant in the Transaction Value for the purpose of calculation of GST payable in terms of Section 15 of the CGST Act, 2017 - HELD THAT:- In the agreement submitted by the applicant the major part of the contract is supply of goods. The price of these goods are supplied to the client by the applicant constitutes 98.58% of total contract price. Further we find that the goods that are supplied are used by the applicant to provide services like installation, commissioning and maintenance etc. Without these goods the services cannot be supplied by the applicant and therefore we find that the goods and services are supplied as a combination and in conjunction and in the course of their business where the principal supply is supply of goods. Therefore, the instant supply squarely falls under the definition of “composite supply”. Thus we find that there is a composite supply in the subject case since in the subject case there is no building, construction, fabrication, completion, erection etc of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of the contract - Besides, as per Para 1(c) of Schedule II of the CGST/OGST Act, any transfer of title in goods under an agreement which stipulates that property in goods shall pass at a future date upon payment of full consideration as agreed, is a supply of goods and not a service.
Whether the supply of the applicant falls under the supply of ‘works contract service’? - HELD THAT:- The salient features of the agreement indicate that the obligation on the applicant is in relation to the effective installation and functioning of the goods supplied by them and thereafter, they would undertake the activities of ‘operation and maintenance’ of the same. The contract governing their supplies does not relate to building, construction, and fabrication etc. of any immovable properties, as envisaged in the definition of ‘works contract’. Their supplies are in the nature of movable property i.e. supply of goods which involves ancillary services such as installation, commissioning etc. All these services which are supplied to the clients are nothing but ancillary activities with the main activities of supply of goods. The primary activity of the applicant is therefore, ‘supply of goods’ and not ‘supply of services’. Further, the said activity performed by the applicant is not related to the immovable property at any point of the time and hence the said activity does not qualify to be a ‘works contract’.
Whether GST is liable to be paid under Entry 3(vi) of Notification No. 11/2017-CT (Rate) dated 28 June 2017 (as amended) on the supply and installation activities along with operation and maintenance activities to be undertaken by the Applicant? - HELD THAT:- The provisions of Notification No. 11/2017-CT (Rate) dated 28 June 2017 (as amended) are not applicable to the noticee’s case. The principal supply as mentioned above in this case is a ‘supply of goods’ and therefore the GST will have to be paid on the goods at the appropriate rate after classification under the appropriate heading.
Whether in facts and circumstances of the case, the capital subsidy received/ receivable by the applicant for the subject transaction be liable to be included in the Transaction Value for the purpose of calculation of GST payable in terms of Section 15 of the CGST Act, 2017? - HELD THAT:- In view of Section 15(2)(e) of the CGST Act, the ‘value of supply’ shall include subsidies directly linked to the price excluding subsidies provided by the Central Government and State Governments. On perusal of the agreement/contract, we see that the capital subsidy received/ receivable by the applicant in the instant case is the actual cost incurred by the project SPV (the applicant in the instant case) in the project as approved by the Authority & ULBs. It is not a subsidy which generally means grant/grant-in-aid or a benefit given to an individual, business or institution, usually by the government. It is also not a subsidy which typically given to remove some type of burden and to promote a social good or an economic policy for overall interest of the public. The so called ‘capital subsidy’ cannot be a ‘subsidy’ by any stretch of the imagination, rather the same is a consideration as defined in Section 2(31) of the CGST Act in relation to the supply of goods and therefore, the said ‘capital subsidy’ shall certainly be liable to be included in the Transaction Value for the purpose of calculation of GST.
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2021 (1) TMI 1099 - AUTHORITY FOR ADVANCE RULING, ODISHA
Classification of supply - Works Contract Services or not - activities of supply installation, operation and maintenance of Greenfield Public Street Lighting System (GPSLS) carried out by the Applicant - levy of GST under Entry 3(vi) of Notification No. 11/2017-CT(Rate) dated 28 June 2017 (as amended) - inclusion of capital subsidy received/receivable by the applicant in the Transaction Value for the purpose of calculation of GST payable in terms of Section 15 of the CGST Act, 2017 - HELD THAT:- In the agreement submitted by the applicant the major part of the contract is supply of goods. The price of these goods are supplied to the client by the applicant constitutes 98.58% of total contract price. Further we find that the goods that are supplied are used by the applicant to provide services like installation, commissioning and maintenance etc. Without these goods the services cannot be supplied by the applicant and therefore we find that the goods and services are supplied as a combination and in conjunction and in the course of their business where the principal supply is supply of goods. Therefore, the instant supply squarely falls under the definition of “composite supply”. Thus we find that there is a composite supply in the subject case since in the subject case there is no building, construction, fabrication, completion, erection etc of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of the contract - Besides, as per Para 1(c) of Schedule II of the CGST/OGST Act, any transfer of title in goods under an agreement which stipulates that property in goods shall pass at a future date upon payment of full consideration as agreed, is a supply of goods and not a service.
Whether the supply of the applicant falls under the supply of ‘works contract service’? - HELD THAT:- The salient features of the agreement indicate that the obligation on the applicant is in relation to the effective installation and functioning of the goods supplied by them and thereafter, they would undertake the activities of ‘operation and maintenance’ of the same. The contract governing their supplies does not relate to building, construction, and fabrication etc. of any immovable properties, as envisaged in the definition of ‘works contract’. Their supplies are in the nature of movable property i.e. supply of goods which involves ancillary services such as installation, commissioning etc. All these services which are supplied to the clients are nothing but ancillary activities with the main activities of supply of goods. The primary activity of the applicant is therefore, ‘supply of goods’ and not ‘supply of services’. Further, the said activity performed by the applicant is not related to the immovable property at any point of the time and hence the said activity does not qualify to be a ‘works contract’.
Whether GST is liable to be paid under Entry 3(vi) of Notification No. 11/2017-CT (Rate) dated 28 June 2017 (as amended) on the supply and installation activities along with operation and maintenance activities to be undertaken by the Applicant? - HELD THAT:- The provisions of Notification No. 11/2017-CT (Rate) dated 28 June 2017 (as amended) are not applicable to the noticee’s case. The principal supply as mentioned above in this case is a ‘supply of goods’ and therefore the GST will have to be paid on the goods at the appropriate rate after classification under the appropriate heading.
Whether in facts and circumstances of the case, the capital subsidy received/ receivable by the applicant for the subject transaction be liable to be included in the Transaction Value for the purpose of calculation of GST payable in terms of Section 15 of the CGST Act, 2017? - HELD THAT:- In view of Section 15(2)(e) of the CGST Act, the ‘value of supply’ shall include subsidies directly linked to the price excluding subsidies provided by the Central Government and State Governments. On perusal of the agreement/contract, we see that the capital subsidy received/ receivable by the applicant in the instant case is the actual cost incurred by the project SPV (the applicant in the instant case) in the project as approved by the Authority & ULBs. It is not a subsidy which generally means grant/grant-in-aid or a benefit given to an individual, business or institution, usually by the government. It is also not a subsidy which typically given to remove some type of burden and to promote a social good or an economic policy for overall interest of the public. The so called ‘capital subsidy’ cannot be a ‘subsidy’ by any stretch of the imagination, rather the same is a consideration as defined in Section 2(31) of the CGST Act in relation to the supply of goods and therefore, the said ‘capital subsidy’ shall certainly be liable to be included in the Transaction Value for the purpose of calculation of GST.
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2021 (1) TMI 1098 - AUTHORITY FOR ADVANCE RULING, ODISHA
Levy of GST - Capital Subsidy (90 per cent of Project Capital Expenditure) received by the Applicant as per SIOM Agreement and Escrow Agreement from Odisha Government /ULBs for the Green Field Public Street Lighting System in the State of Odisha - composite supply or not - balance 10% of the Project Capital Expenditure and O&M Fees received as Annuity Fee over the period of 7 years by the Applicant as per SIOM Agreement considering the Si. No. 3(vi) of the notification No. 11/2017 Central Tax (Rate), dt. 28-06-2017 as amended by Notification No. 31/2017 Central Tax (Rate), dt. 13-10-2017 and corresponding notifications of Odisha State Tax Rate as amended - time for raising GST Invoices for Capital Subsidy and Annuity Fee (consisting of 10% of Project Capital Expenditure and O&M Fee) payable in 7 years - rate of tax on the supplies by the sub-contractor to the Applicant shall be 12 % GST in terms of serial no. 3 (ix) of Notification No.11/2017-Central Tax(Rate) dated 28.6.2017 as amended by Notification No.1/2018-Central Tax (Rate) dated 25.01.2018/ Odisha State Tax (Rate) dated 28.06.2017 as amended.
Whether in the present case, the supply being undertaken or proposed to be undertaken by the applicant would qualify to be a supply of ‘composite supply ‘or ‘works contract’? - HELD THAT:- On perusal of the SIOM agreement (supply, installation, operation and maintenance) & Equipment Price Schedule for Cluster C, we see that the contract value for cluster C (urban Local Bodies in Balasore, Bhadrak, Jajpur, Baripada) is ₹ 42.35cr and the contract pricing is different for Equipment of Materials and O&M Fee (operation and maintenance fee). Out of ₹ 42.35 cr, the price of Equipments is ₹ 38.23 Cr and the price for O&M Fee is ₹ 4.12Cr only. Thus the contract price has clearly bifurcated the contract into a supply of goods and supply of services. Further clause No. 13 of the agreement deals with TERMS OF PAYMENTS. The said clause of the agreement envisages that separate payment for capital subsidy & O&M Fee. There appears to be a clear bifurcation in the agreement with respect to price of Equipments and O&M Fees - the agreement that the contract is considering a clear demarcation of goods and services to be provided by the applicant but the supplies are naturally bundled and in conjunction with each other.
It is found that in the agreement submitted by the applicant, the major part of the contract is supply of goods. The price of these goods supplied to the client by the applicant constitutes 90.23% of total contract price. Further we find that the goods that are supplied are used by the applicant to provide services like installation, commissioning and maintenance etc. Without these goods the services cannot be supplied by the applicant and therefore we find that the goods and services are supplied as a combination and in conjunction and in the course of their business where the principal supply is supply of goods. Therefore, the instant supply squarely falls under the definition of “composite supply” where the principal supply is supply of goods’ - here is a composite supply in the subject case since in the subject case there is no building, construction, fabrication, completion, erection etc of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of the contract - Besides, as per para 1(c) of Schedule II of the CGST/OGST Act, any transfer of title in goods under an agreement which stipulates that property in goods shall pass at a future date upon payment of full consideration as agreed, is a supply of goods and not a service.
Whether the supply of the applicant falls under the supply of ‘works contract service’? - HELD THAT:- The salient features of the agreement indicate that the obligation on the applicant is in relation to the effective installation and functioning of the goods supplied by them and thereafter, they would undertake the activities of ‘operation and maintenance’ of the same. The contract governing their supplies does not relate to building, construction, and fabrication etc. of any immovable properties, as envisaged in the definition of ‘works contract’. Their supplies are in the nature of movable property i.e. supply of goods which involves ancillary services such as installation, commissioning etc. All these services which are supplied to the clients are nothing but ancillary activities with the main activities of supply of goods. The primary activity of the applicant is therefore, ‘supply of goods’ and not ‘supply of services’. Further, the activity performed by the applicant is not related to the immovable property at any point of the time and hence the said activity does not qualify to be a ‘works contract’.
Whether Capital Subsidy (90 per cent of Project Capital Expenditure) received by the Applicant as per SIOM Agreement and Escrow Agreement from Odisha Government / ULBs for the Green Field Public Street Lighting System in the State of Odisha is not liable to GST and if liable to GST, then at what rate of GST? - HELD THAT:- In view of Section 15 (2)(e) of the CGST Act, the ‘value of supply’ shall include subsidies directly linked to the price excluding subsidies provided by the Central Government and State Governments. On perusal of the agreement/contract, we see that the capital subsidy received/ receivable by the applicant in the instant case is the actual cost incurred by the project SPV (the applicant in the instant case) in the project as approved by the Authority & ULBs. It is not a subsidy which generally means grant/grant-in-aid or a benefit given to an individual, business or institution, usually by the government. It is also not a subsidy which typically given to remove some type of burden and to promote a social good or an economic policy for overall interest of the public. The so called ‘capital subsidy’ cannot be a ‘subsidy’ by any stretch of the imagination, rather the same is a consideration as defined in Section 2(31) of the CGST Act in relation to the supply of goods and therefore, the said ‘capital subsidy’ shall certainly be liable to be included in the Transaction Value for the purpose of calculation of GST. We are of the considered view that the applicant is liable to pay GST on ‘Capital Subsidy’ ( 90% of the total capital expenditure).
What shall be the GST rate for the balance 10% of the Project Capital Expenditure and O&M Fees received as Annuity Fee over the period of 7 years by the Applicant as per SIOM Agreement considering the Sl. No. 3 (vi) of the notification No. 11/2017 Central Tax (Rate), dt. 28-06-2017 as amended by Notification No. 31/2017 Central Tax (Rate), dt. 13-10-2017 and corresponding notifications of Odisha State Tax Rate as amended’? - HELD THAT:- The supply being undertaken or proposed to be undertaken by the applicant would qualify to be a supply of ‘composite supply’ in terms of definition under Section 2(119) of the Central Goods and Services Tax Act, 2017, where the principal supply is ‘supply of goods’ not ‘supply of service’. Therefore, question of the applicability of concessional rate of tax in terms of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 and as amended does not arise. The GST will have to be paid on the goods at the appropriate rate after classification under the appropriate heading.
What shall be the time for raising GST Invoices for Capital Subsidy and Annuity Fee (consisting of 10% of Project Capital Expenditure and O&M Fee) payable in 7 years? - HELD THAT:- Since in the subject case there is a ‘composite supply’ where the predominant supply/principal supply is ‘supply of goods’, we are of the opinion that the applicant should raise invoice as per the provisions of Section 31 of the CGST Act, 2017.
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2021 (1) TMI 1097 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Classification of supply of service - activity of bullet proof body building (in addition to fixing bullet proof windshield glass, bullet proofing of engine and fuel tank on the motor vehicles (2.5 Ton capacity) having Tarpaulin cover in the cargo compartment - whether classified under head 9988 (ic) or 9988 (id) of the GST tariff or not? - Since the applicant has already charged IGST @ 28% by classifying the supply as supply of goods under GST tariff for goods heading 8707, whether the customer should claim the refund from the department or the applicant should lodge the claim the refund, in the event of the above classification being upheld by the AAR? - HELD THAT:- The applicant is engaged in the manufacture of Bullet proof glass, bullet proof Vehicles, Lectern etc. in their factory. Besides, applicant is also undertaking armouring by body building on the chassis of vehicles supplied by the customers mainly the army/ police etc. using bullet proof steel and glass. Vehicles of 2.5 Ton or higher capacity owned by the customer (army/police) are supplied to the applicant and these vehicles have either metal (partial or full) or partially metal and partially Tarpaulin covered cargo compartments.
The applicant for the purpose of bullet proofing of these vehicles, first of all removes the existing metal/ tarpaulin cover on the rear cargo compartment making the cargo compartment completely naked so to say except the flooring part. At this stage the vehicle resembles a chassis virtually and for all practical purposes so that the body can be built on the cargo portion as per the specific requirement of the customer with bullet proof steel, glass, and other fixtures to stack the weapons, seating for the personnel to be carried, providing firing ports, turrets etc. On the driver cabin, bullet proof windshield with bullet proof steel frame is fixed, driver cabin doors are fixed with bullet proof glass and bullet proof steel sheets on existing front body. In addition, bullet proofing of the engine compartment and fuel tank are also to be done.
In view of Circular bearing No. 52/26/2018-GST, dated 09.08.2018, it is concluded and clear that the activity of job work consisting of fabrication including of bullet proof work done on chassis provided by the Principal (ownership of which always remains with Principal) is a supply of Service attracting GST @ 18%.
Refund claim - HELD THAT:- Further it is observed that as per Section 97 (2) of CGST Act, 2017, Advance Ruling can be obtained only regarding taxability, classification, rate of tax, exemption notification, determination of time and value of supply, ITC and Registration etc. under GST for supply of goods and Services. Since, the applicant has sought ruling on issue of refund of tax which is outside the purview/scope of this Authority as defined under Section 97(2) of the act ibid.
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2021 (1) TMI 1096 - GUJARAT HIGH COURT
Constitutional validity of Section 16(4) of the GST Act, 2017 - Vires of Articles 14, 19(1)(g) and 300A respectively of the Constitution - HELD THAT:- Let Notice be issued to the respondents, returnable on 25th March 2021. The respondents shall be served directly through Email. In the meantime, one set of the entire paper book be furnished to Mr. Devang Vyas, the learned Additional Solicitor General of India, who would be appearing for the respondents.
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2021 (1) TMI 1095 - GUJARAT HIGH COURT
Valuation - Independent transaction of purchase of land and construction contract for construction of bungalow on such land - Validity of Entry No.3(if) of the Notification No.11/217 -Central Tax (Rate) dated 28th June, 217 read with Para-2 of the said notification - HELD THAT:- The writ applicant has been able to make out a strong prima facie case to have an interim order in his favour in terms of para-27(F) of the writ application. We, accordingly, grant such relief. We permit the writ applicant to deposit the amount of tax as raised under the invoice without prejudice to his rights and contentions as raised in this writ application.
Mr. Sheth, the advocate on record, shall furnish one set of the entire paper-book to Mr. Devang Vyas, the learned Addl. Solicitor General of India at the earliest so that he can obtain necessary instructions in the matter by the next date of hearing.
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2021 (1) TMI 1094 - DELHI HIGH COURT
Profiteering - benefit of input tax credit to its customers/homebuyers not passed on - Section 171 of the CGST Act and Chapter XV of the CGST Rules (more particularly, Rules 126, 127 & 133 of the CGST Rules) - HELD THAT:- Issue notice. Mr. Farman Ali, learned counsel for the respondent No.1 and Mr. Ravi Prakash, learned counsel for respondents No. 2 and 3 accept notice. Counter affidavits be filed within a period of two weeks. Rejoinder, if any, be filed before the next date of hearing.
List along with other batch petitions on 15th February, 2021.
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2021 (1) TMI 1093 - DELHI HIGH COURT
Vires of Section 171 of the CGST Act, 2017 and other provisions under Chapter XV of the Act - composition of the Respondent No. 2/National Anti-Profiteering Authority under Rule 122 of the CGST Rules, 2017 - HELD THAT:- Although in the order passed in NESTLE INDIA LTD. & ANR. VERSUS UNION OF INDIA & ORS. [2020 (2) TMI 671 - DELHI HIGH COURT] the court has apparently not interdicted the suo moto investigation, but at the same time we notice that this Court has given protection to nearly all the Petitioners, faced with similar circumstances, i.e., wherever the authority has directed investigation in relation to products/services which were beyond the scope of original investigation. Therefore, we see no reason to deny the same relief to the Petitioner herein.
Petitioner is therefore entitled to the interim protection, pending disposal of the present petition. Accordingly, it is directed that the directions given in the impugned order to Respondent No. 3 to investigate 14 projects of the Petitioner in the State of Haryana, shall remain stayed. It is however clarified that the investigation with respect to the ‘Discovery Project’ at Faridabad shall continue in terms of the directions given in the impugned order.
Issue Notice.
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2021 (1) TMI 1092 - ALLAHABAD HIGH COURT
Vires of Sections 69 and 132 of the Central Goods and Services Tax Act, 2017 and U.P. Goods and Services Tax Act, 2017, Section 135 of the Central Goods and Services Tax Act, 2017 and U.P. Goods and Services Tax Act, 2017 and Sections 16 (2) (c) of the Central Goods and Services Tax Act, 2017 and U.P. Goods and Services Ta Act, 2017 - HELD THAT:- Since, vires of provision of the Central Goods and Services Tax Act, 2017 and U.P. Goods and Services Tax Act, 2017 have been challenged, let issue notices be issued to Attorney General of India and the Advocate General of State of U.P. Sri Manish Kumar Niranjan, learned counsel for respondent no.1 and learned Standing Counsel for respondent no.2 pray for and are granted four weeks' time to file their respective counter affidavits. Learned counsel for the petitioner shall have one week thereafter to file rejoinder affidavit.
Let this matter be listed along with Writ Tax No.688 of 2020, showing name of Sri Manish Kumar Niranjan, Advocate as counsel for the respondent no.1.
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2021 (1) TMI 1091 - ALLAHABAD HIGH COURT
Seizure of Goods - allegation of reuse of E-way bills - Since the e-way bills were not cancelled and the transportation of the goods commenced four days thereafter, it has been inferred that the said e-way bills had been reused - HELD THAT:- Rule 138(9) of the Rules does not prescribe that the dealer must necessarily cancel the e-way bill if no transportation of the goods is made within 24 hours of its generation. It certainly does not provide any consequence that may follow if such cancellation does not take place. On the contrary, the Rule permits a dealer to cancel the e-way bill only if the transportation does not take place and the dealer choses to cancel such e-way bill within 24 hours of its generation.
Even if the dealer does not cancel the e-way bill within 24 hours of its generation, it would remain a matter of inquiry to determine on evidence whether an actual transaction had taken place or not. That would be subject to evidence received by the authority. As such it was open to the seizing authority to make all fact inquiries and ascertain on that basis whether the goods had or had not been transported pursuant to the e-way bills generated on 24.11.2019. Since the petitioner-assessee had pleaded a negative fact, the initial onus was on the assessing authority to lead positive evidence to establish that the goods had been transported on an earlier occasion. Neither any inquiry appears to have been made at that stage from the purchasing dealer or any toll plaza or other source, nor the petitioner was confronted with any adverse material as may have shifted the onus on the assessee to establish non-transportation of goods on an earlier occasion - the presumption could not be drawn on the basis of the existence of the e-way bills though there did not exist evidence of actual transaction performed and though there is no statutory presumption available. Also, there is no finding of the assessing authority to that effect only. Mere assertion made at the end of the seizure order that it was clearly established that the assessee had made double use of the e-way bills is merely a conclusion drawn bereft of material on record. It is the reason based on facts and evidence found by the assessing authority that has to be examined to test the correctness of the order and not the conclusions, recorded without any material on record.
Though the petitioner-assessee has also disputed the correctness of the additional evidence, that issue is not required to be gone into in the present case - the order passed by the appeal authority is erroneous, being contrary to the provisions of law.
The appeal authority had no jurisdiction to examine fresh evidence at the behest of the revenue or record fresh reasons to support original order. The proper authority, had not recorded any reason to establish evasion of tax or attempt to evade tax or even reuse of the documents by the petitioner. Though he raised that issue in the seizure proceedings, he did not record any finding that effect in the final order dated 3.12.2019 passed under Section 129(3) of the Act. He simply rejected the explanation furnished by the assessee without recording any reason and consequently imposed tax and penalty.
No useful purpose would be served to remand the proceeding now as that would amount to giving the revenue a second inning to built a fresh case that too after being aware of the defense set out by the assessee in the first leg of the proceedings. The order dated 3.12.2019 passed by the proper authority under Section 129(3) of the Act is found to be perverse and is set aside - Petition allowed.
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2021 (1) TMI 1052 - DELHI HIGH COURT
Profiteering - Kiwi Shoe Polish Black – 40 gm PSP - vires of Section 171 of the CGST Act read with Rule 126 of the CGST Rules - HELD THAT:- Mr.Ravi Prakash, learned standing counsel accepts notice on behalf of the Revenue. He prays for and is permitted to file a counter-affidavit within two weeks. Rejoinder-affidavit, if any, be filed before the next date of hearing.
List on 04th January, 2021 along with connected matters.
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2021 (1) TMI 1048 - GUJARAT HIGH COURT
Recovery of erroneous refund of IGST - Refund of the unutilized Input Tax Credit against Export of goods - Applicability of circular dated 4th September 2018, more particularly, the para 3.2 therein with retrospective effect - It is the case of the writ applicant that upon export of goods against a letter of undertaking without payment of tax, it was entitled to refund of the unutilized Input Tax Credit under Section 54(3) of the Act, 2017 - HELD THAT:- Mr. Sheth, in the alternative, submitted that assuming for the moment that there is nothing wrong with the circular dated 4th September 2018, still, the show cause notice under Section 74 of the Act, could not have been issued for the purpose of taking back the refund, as such a recovery is not permissible in law. If the department is of the view that the refund was wrongly availed and sanctioned, then it should prefer an appeal and not issue a show cause notice under Section 74 of the Act.
Let Notice be issued to the respondents, returnable on 2nd March 2021. Let there be an adinterim relief in terms of para 23(D) of this writ application.
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