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GST - Case Laws
Showing 1 to 20 of 156 Records
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2021 (3) TMI 1443
Levy of GST on broken rice, bran and husk - consideration payable in terms of Section 2(31) of the Goods Service Tax Act 2017 - whether High Court has erred in holding that in terms of Clause 17 of the agreement, the consideration was only the price for milling of paddy, as fixed? - HELD THAT:- Issue notice, returnable in eight weeks.
Till the next date of listing, no coercive steps shall be taken against the petitioners on the basis of the impugned judgment and order of the High Court dated 20 November 2020 in WP No 45971 of 2018.
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2021 (3) TMI 1427
Grant of Default Bail - evasion of GST - validity of provisions of Sections 69 and 132 of CGST Act, 2017 - HELD THAT:- This Court has issued notice with interim directions and are now fixed for hearing on 28.06.2021.
Notice of motion for 28.06.2021.
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2021 (3) TMI 1404
Seeking grant of interim anticipatory bail - HELD THAT:- In the event of arrest of the applicant, Rishabh Jain, shall be released on interim anticipatory bail in pursuance of notice dated 05.02.2021 issued by the Director General of GST, Zonal Unit, Gurugram read with Sections 174 and 175 IPC on her furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the Station House Officer of the police Station/court concerned with the conditions imposed.
The applicant shall make himself available for interrogation by a police office as and when required - The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police office.
Application allowed.
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2021 (3) TMI 1380
Input Tax Credit - goods/services received for construction of hotel building - work contract service received for construction of hotel building - goods/services received for construction of banquet hall which is rented further to customer - work contract service received for construction of banquet hall which is rented further to customer - input credit on work contract service or any goods/service received for construction of such hotel/banquet hall - expression “plant & machinery” would include hotel/banquet building' under section 17 - specified goods viz. lifts, sanitary items, underground cables etc. fall under the expression “plant & machinery” or not - freight paid to GTA on such items under RCM - Section 17(5)(c) & 17(5)(d) of CGST Act.
HELD THAT:- Powers to restrict flow of credit also exist under Section 16(1) of the CGST Act which empowers the Central Government to impose conditions and restrictions on availing input tax credit. This shows a Legislative intent that input tax credit may not always be allowed partially or fully. Input tax credit provisions do not provide for that all the tax paid on inputs should be available as credit. Some credits have been denied under Section 17 in the Act itself and to allow flexibility, the Act provides that restrictions can be placed on availability of credit - under the GST regime, more input tax credit is available to tax payers along the entire supply chain as compared to the previous tax regime. Further, the transitional provisions under the CGST Act provide adequate credit of taxes accumulated under the erstwhile taxation regime to taxpayers in the GST regime.
The legislative intent flows from the sovereign power given in the CGST Act, 2017 vide Section 16(1) of the Act. As per said provision input tax credit is allowed to a registered person subject to such conditions and restrictions as the Government thinks proper, against the supply of goods or services received which are used or intended to be used in the course or furtherance of his business. Here it is pertinent to mention that construction of an immovable property (hotel/restaurant or banquet hall) is a different business and hotel accommodation or renting of banquet hall is a different business. Thus supply chain is not the same for both the businesses. The thin line here is the break in the nature of business. For both the businesses input supply of goods or services are totally different from each other. Input supply of goods or services received for one business cannot be used for furtherance of other business.
Lifts, Sanitary items and underground cables etc - HELD THAT:- Lifts, Sanitary items and underground cables etc. being integral parts of a building are immovable properties as these items are attached to building for the permanent beneficial enjoyment of the said building and therefore cannot be termed as “plant and/or machinery”.
Availability of input credit on the same and freight paid to GTA on such items under RCM, Repair & maintenance of specified goods and Architect services etc. - HELD THAT:- Section 17(5)(c)(d) blocks credit of input tax when works contract services are supplied for construction of an immovable property as well as when goods or services or both received by a taxable person for construction of an immovable property where immovable property is not “plant and/or machinery”. Since Lifts, Sanitary items and underground cables etc. are also immovable property therefore input tax credit of works contract service supplied for construction of these items or goods or services or both received for construction of these items together with construction of hotel/banquet hall will also not be available to the applicant, however this aspect of allowing input tax credit under Section 17(5)(c) & (d) is pending decision before Hon'ble Supreme Court in case of M/s Safari Retreats Pvt. Ltd [2020 (3) TMI 1150 - SC ORDER].
Repair & Maintenance itself is not a construction service. Roll of repair or maintenance starts when a building or any immovable property comes into existence. Repair & Maintenance is done on the already constructed buildings, civil structures etc. Further, input tax credit of the GST paid on Repair & Maintenance service supplied for repair or maintenance of an immovable property is not denied under CGST Act. Therefore input tax credit of the GST paid on Repair & Maintenance service is allowable under CGST Act.
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2021 (3) TMI 1344
Classification of supply - supply of goods or supply of services - financial assistance to be received by the Appellant are covered as consideration for supply or not - exempted supply or non-taxable supply - Zero Rated Supply or not - export of service or not - reversal of input tax credit - service is classifiable under SAC 9997 as other services nowhere else classified or not - applicability of SI. No 35 of the Notification-11/2017- Central Tax (Rate) dated 28.06.2017 / Sl. No. 35 of the Notification- 11/2017-State Tax (Rate) dated 29.06.2017 / SI. No. 35 of the Notification-8/2017- Integrated Tax (Rate) dated 28.06.2017.
HELD THAT:- The Appellant is undertaking multiple activities under different categories, i.e., activities related to construction, training, etc., against the lumpsum amount paid by their Principal, which can clearly be considered as “composite supply” in terms of Section 2(30) of the CGST Act, 2017 - In the present case, the Appellant is undertaking multiple taxable supplies of services such as construction of training workshop, providing training to apprentices, unskilled workers, students of various technical institutes, etc. All these activities, which are being supplied in conjunction with each other, can aptly be said to be naturally bundled where the principal supply will be training services being provided to the various candidates as mentioned. The activities related to the construction of the training workshop can be construed as ancillary services to this principal supply, i.e., training service, provided to various candidates as the same are essential for the said principal supply.
All the activities are performed by the Appellant for the completion of the project run by their German Principal. Since the objectives of the said project is to provide the vocational/on-job training to the various candidates, like, apprentices, unskilled workers, students, etc. from various institutions and colleges to mitigate the investment related risks in developing and emerging countries. Hence, the entire gamut of activities performed by the Appellant can be construed as composite supply where the principal supply will be supply of training services to the various candidates from the selected institutions with all other supplies being ancillary and incidental to the principal supply.
Now, once the activities undertaken by the Appellant are held as composite supply where the training service being imparted to the various candidates is the principal supply, the said supply will squarely be covered under the SAC 999294 prescribed at SI. No. 600 of the Annexure to the Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 and bearing the description “Other education and training services nowhere else classified”.
Since it has been established that the Appellant is providing composite services of which the training services is the principal supply, it can be said that the Appellant is undertaking the performance-based service where the said training services are supplied to individuals, such as apprentices, unskilled workers, students of various technical institutes and colleges, who can be said to be representing on behalf of the recipient, i.e., the Principal located in Germany as the Appellant are receiving the consideration/financial assistance for undertaking the aforesaid training services being provided to above-said individuals from their German Principal, therefore, it can unambiguously be said that the above-mentioned individuals whom the Appellant are rendering training services are acting on behalf of the recipient, in this case, the German Principal of the Appellant.
It is established beyond doubt that the activities undertaken by the Appellant by way of providing training services to the individuals acting on behalf of their Principal are performance-based services. Since, in this case, the said services are performed at the premises of the Appellant, which is in India, the place of supply of the impugned services will also be in India in terms of Section 13(3)(b) of the IGST Act, 2017.
Zero-rated supply in terms of Section 16(1) of the IGST Act, 2017 or not - export of service or not - HELD THAT:- The said supply of services will not be considered as export of services on account of the above findings that the place of supply of the services under question will not be outside India, and thereby, not complying with the clause (iii) of the Section 2(6) of the IGST Act, 2017, which stipulates five conditions or clauses that are required to be fulfilled for any supply of service to qualify for export of service.
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2021 (3) TMI 1342
Nature of transaction - goods or service - e-goods as commercially known in the market - HSN classification - rate of GST on its sale/ supply within state - exemption from GST or not - applicability of reverse charge mechanism - If the customer is from India and paying the consideration in dollar, whether it will be allowed as exports or if not allowed as exports then whether GST is leviable? - levy of SGST AND CGST or IGST, If customer pays for the e goods in Indian rupees and goods delivered through CLOUD located outside India - In case the buyer is from India, the goods/ services are stored in CLOUD which are the servers outside India. therefore even though payment is received in rupees, it is again export of service being services are received from distantly installed servers.
Condonation of the delay which had occurred in filing of the subject Appeal - HELD THAT:- It is observed that the said delay of 20 days in filing the subject Appeal has occurred under the circumstances which appears to be beyond the control of the Appellant and accordingly, the said delay cannot be considered as intentional or deliberate on the part of the Appellant, and hence the said delay of 20 days is condoned in filing the subject Appeal in terms of the proviso to Section 100 (2) of the CGST Act, 2017.
On perusal of the subject appeal memorandum filed by the Appellant, it is observed that the Appellant have not disputed the classification of the impugned e-goods dealt with by the Appellant where the MAAR has held the same as supply of services under the SAC 998439 bearing the description “Other online contents not elsewhere specified”.
It is an undisputed fact that the Appellant are the recipient of the impugned OIDAR services procured from their foreign supplier/vendors, hence the place of supply in this case will be the location of the recipient, i.e., the Appellant, who are located in India. i.e., in the taxable territory - As per the definition of import of services, the supplier is outside India and the recipient i.e applicant is in India. The place of supply of OIDAR as per Section 13 (12) of the IGST Act is the location of the recipient of services. Therefore, all the conditions being fulfilled as the place of supply of service is in India. Therefore. the transaction qualifies for import of services. So even though the said e-goods, after being purchased by the Appellant are stored on the Cloud Servers located outside India. and the same are not downloaded by the Appellant in India. the same will be import of services. The Appellant has made the payments to the foreign suppliers i.e consideration is paid which enables him to supply them to his customers or provide access to them, the fact that he gets the right to supply it to his customers shows that there is supply by the foreign supplier to the Appellant and the Appellant gets the right to supply it further.
The transaction of purchase of e-goods from the foreign suppliers will attract the levy of IGST under the Reverse Charge Mechanism in terms of the provisions of Section 5(3) of the IGST Act, 2017 read with the Notification No. 10/2017-I.T. (Rate) dated 28.06.2017. Accordingly, the Appellant will be liable to pay IGST under reverse charge basis on the purchase of the e-goods from their foreign suppliers even though the said e-goods, after being purchased by the Appellant, are stored on the Cloud Servers located outside India. and the same are not downloaded by the Appellant in India. It is so because the said provision related to the place of supply of OIDAR services as prescribed under Section 13 (12) of the IGST Act. 2017 does not mention about how and where the services related to OIDAR are received by the recipient but mentions only of the place of the recipient.
Supply of e-goods by the Appellant to the Indian customers. from whom the payments are received in Indian Rupees, will also attract GST which leads to conclude that the place of supply of OIDAR services in the subject transaction will be in India, i.e., in the taxable territory because the recipient of the OIDAR services, i.e. the customers of the Appellant are located in India. The MAAR has further held that since both the Appellant and the recipient are located in India and the place of supply is also in India, hence, the Appellant will be liable to pay GST on the transaction under consideration - there is no case of an out and out sale, there is import of digital goods by the Appellant by which he gets the right to transfer it to his customers and as his customers are located in India, it will attract GST. As to whether it attracts SGST-CGST or IGST will depend upon the location of the customers in India- whether in or out of Maharashtra. As regards this issue under discussion, we approbate the ruling pronounced by the MAAR and reject the contention, put forth by the Appellant in as much as the supply of the subject e-goods to the Indian customers are being made through the Cloud Servers located abroad.
Export of the said OIDAR services being provided by the Appellant to their foreign customers - HELD THAT:- It is truly not possible to determine the place of supply of the subject OIDAR services without putting to the test all the seven non-contradictory conditions prescribed under explanation to Section 13 (12) of the IGST Act, 2017 with respect to the potential recipient of the subject OIDAR services. Also, the fulfillment of the conditions will be vis-à-vis an evaluation of every single transaction undertaken by the Appellant - As the evaluation is based on pure facts, it is deemed proper not to answer it.
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2021 (3) TMI 1319
Seeking direction to respondents to accept the amount as specified in the SLVDRS-3 - benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme - HELD THAT:- This Court deems it fit that in the given facts and circumstances that the petitioner is a bona fide businessman and is prepared to pay the amount in question in accordance with the scheme along with interest for the period which he has defaulted in scheme and looking into the extreme pandemic conditions of COVID and the death of petitioner's father, this is a fit case for invocation of the powers under Article 226 of the Constitution of India.
The respondents are directed to accept the amount as specified in SLVDRS-3 Form No.L280120SV301549 dated 28.01.2020 and give the petitioner benefit of Sabka Vishwas Scheme - Petition allowed - decided in favor of petitioner.
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2021 (3) TMI 1313
Cancellation of anticipatory bail granted - non-compliance with the condition within the time stipulated by this Court - HELD THAT:- Issue notice.
There shall be interim stay of the impugned order(s) and the amount already recovered shall remain with the respondent(s) in the meanwhile.
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2021 (3) TMI 1296
Seeking withdrawal of petition - final order of confiscation has been passed - petitioner submits that the petition be closed with liberty to the petitioner to seek the remedy as is available in law - HELD THAT:- The writ petition is closed with liberty to the petitioner to seek the remedy of challenging the order of confiscation according to the provisions of law.
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2021 (3) TMI 1295
Levy of Entertainment tax - tax slabs were fixed under GST Act - HELD THAT:- Having regard to the fact that lockdown imposed by the State and Central Government has now been lifted and inter-State travel is now possible, and since vaccination for Covid-19 virus is also being administered, and since personal appearance of the petitioner is not necessary having regard to sub-rule (2) of Rule 133, we dispose of this Writ Petition directing the petitioner to submit explanation to the notice dt.06-03-2020 to the 4th respondent within four (04) weeks from today.
The Writ Petition is disposed of.
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2021 (3) TMI 1289
Levy of GST - Freight on Reverse Charge Mechanism - GST has been paid on the freight in the case of indigenous supplies - GST has been paid on the ocean freight in the case of imports on the CIF value and the value of the ocean freight is included in the value of the imported goods - revenue neutrality - HELD THAT:- In terms of the Notification No. 10/2017- Integrated Tax (Rate) dated 28.06.2017 (as amended), in the case of import of goods on CIF basis, the appellant is liable to pay GST on the component of Ocean freight paid by the foreign supplier to the shipping company.
The service of transportation of goods is taxable both in case of imports as well as exports for domestic shipping line and for import for foreign shipping line. Since exports by domestic shipping line are already zero rated, the ITC will not be available to Indian shipping lines if the service of inward transportation of goods is not made taxable in India. Accordingly, Tax under RCM gives a level playing field to the domestic shipping lines. Moreover the goods are transported from a place outside India up-to the customs station in India for the importer and therefore, he is directly or indirectly the recipient of service - the CIF value is adopted under Customs Valuation Rules for the purpose of calculation of Customs duty on 'Goods' whereas the GST is being demanded, under reverse charge mechanism, only for the service portion involved in the transaction.
When the GST has been paid on the freight in the case of indigenous supplies, whether the supplier is required to pay again GST on the freight under RCM? - HELD THAT:- The Notification No. 13/2017- CT (Rate) dated 28.06.2017 (as amended) is squarely applicable on the Appellant and they are liable to pay the GST on the freight paid, under the reverse charge mechanism. As regard to the double taxation we are in unison with the Advance Ruling Authority that this is a revenue neutral exercise, having no additional financial impact on the appellant and it is outside the purview of the Advance Ruling Authority.
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2021 (3) TMI 1284
Issue Notice. Mr. Chintan Dave, learned AGP waives service of notice on behalf of the State respondent.
It has been further informed that the similar matters are fixed on 30th March, 2021. Let these matters be also fixed on the said date.
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2021 (3) TMI 1278
Seeking grant of Bail - offence under section 132(1)(b)(c)(f)(i) of the CGST Act - HELD THAT:- Keeping in view the surrounding circumstances including the long period of detention of the Petitioner in Custody, the factum of completion of investigation as also the punishment prescribed for the offence and when the Petitioner aged about 71 years has his permanent residence at Rourkela and the case mainly rests on documentary evidence, this Court being of the view that further detention of the Petitioner would serve no useful purpose, is inclined to reconsider the prayer for grant of bail to the Petitioner.
It is directed that the Petitioner be released on bail in the aforesaid case on such terms and conditions as deemed just and proper by the Court in seisin of the case with conditions imposed - application allowed.
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2021 (3) TMI 1273
Seeking Bail - condition to furnish a bank guarantee/ FDR for amount of ₹ 50 lakhs - a case was registered under Section 132(1) (b) & (c) punishable under Section 132(1) (i) of CGST Act - It is contended that, the imposition of condition to furnish a bank guarantee/ FDR for amount of ₹ 50 lakhs only as it was contrary to the mandate of the Supreme Court in Saravanan vs.State represented by the Inspector of Police, [2020 (10) TMI 1249 - SUPREME COURT] wherein the Supreme Court set aside the condition imposed by the High Court directing the petitioner to deposit an amount of ₹ 8 lakhs while being released on default bail.
HELD THAT:- Economic offences constitute a class apart as compared to the 3 of 6 other offences. Coming to the instant case in the wake of the allegations levelled against the petitioner, it need not be over-emphasized that the parameters in such like cases would definitely warrant a different and stricter application of the conditions of bail. Hence, the imposition of ₹ 50 lakhs as a pre-requisite condition cannot by any stretch of imagination be said to be onerous much less being against the mandate of the Supreme Court in Saravanan's case (supra).
A perusal of the impugned order reveals that the trial Court has carefully examined the facts, circumstances and background of the case while imposing the impugned condition and the same is founded on sound judicial principles.
Petition dismissed.
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2021 (3) TMI 1239
Seeking withdrawal of the provisional attachment order - HELD THAT:- The order in original is appeallable before Commissioner (Appeals) subject to payment of 10% of the demand. Since petitioner has a statutory right of filing appeal against the order in original, to make such right meaningful, we direct that provisional attachment of the aforesaid bank account of the petitioner shall be withdrawn to the extent of 10% of the credited amount as on today with the remaining amount of 90% continuing under debit freeze, which shall be subject to outcome of the appeal or such order that may be passed by the appellate authority.
Stand over to 20th April, 2021.
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2021 (3) TMI 1236
Seeking grant of Bail - allegation is that the petitioner's company had failed to submit returns and after having collected tax from its customer the company did not remit the tax to the Government - offence punishable under Section 132(1) (d) of The Central Goods and Service Tax, 2017 - HELD THAT:- Though the learned counsel for the petitioner submited that already a sum of ₹ 5 crore had been paid as input tax, it was disputed by the respondent.
In order to give an opportunity to the petitioner to produce account and tax payment particulars to the respondent, this court is inclined to grant interim bail to the petitioner till 08.04.2021 on certain conditions imposed.
Application allowed.
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2021 (3) TMI 1218
Seeking grant of Bail - petitioner submits that the petitioner has been falsely implicated in this matter and co-accused who is Managing Director of the Company and Beneficiary has already been released on bail - HELD THAT:- This petition deserves to be allowed for the reasons, firstly, the petitioner is a senior citizen and he is in custody for last about five months and secondly, all the evidence is documentary in nature and there is no apprehension shown by the prosecution about the accused petitioner of tempering with the evidence/witnesses and thirdly, the co-accused has already been released on bail.
Bail granted - application allowed.
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2021 (3) TMI 1217
Seeking grant of Bail - wrong claim GST - Fake invoices without supply of goods - Section 132 of Central Goods and Services Tax Act, 2017 - HELD THAT:- It is deemed proper to allow the bail application - it is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of ₹ 1,00,000/- together with two sureties in the sum of ₹ 50,000/- each to the satisfaction of the trial Court - application allowed.
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2021 (3) TMI 1213
Seeking extension of Amnesty Scheme - cap on the late fees to be collected - exemption from the payment of late fees between 25 March 2020 and 30 June 2020 - refund of amounts calculated - HELD THAT:- The Amnesty Scheme itself lies in the realm of a policy intervention by the Union Government. The terms on which the Amnesty has been granted are hence matters of policy. There are no merit in the petition.
Petition dismissed.
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2021 (3) TMI 1156
Detention of goods - the person incharge of the conveyance, carrying the consignment of goods, was carrying with him the documents and invoice as described under rule 138(A) of the Central Goods and Services Tax Rules, 2017, or not - HELD THAT:- Today, when the matter is taken up for hearing, we are informed that the final order of confiscation in Form MOV-11 has been passed by the concerned authority. However, the learned counsel appearing for the writ-applicants is not aware of the same - Be that as it may, nothing further is required to be adjudicated in the present writ-application as the writ-application came to be virtually allowed by way of the aforesaid interim order. If the final order of confiscation has been passed, then it shall be open for the writ-applicants to challenge the same by preferring an appeal under Section107 of the Act.
Application allowed.
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