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GST - Case Laws
Showing 1 to 20 of 160 Records
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2021 (7) TMI 1416
Principles of natural justice - no personal hearing granted to the petitioner - HELD THAT:- The respondent/State has very fairly accepted that there is such a provision in the Punjab GST Act, 2017 and that the petitioner had in fact requested for personal hearing, which was not granted.
The orders Annexure P-5 and P-6 are set aside - respondent No.2 are directed to pass a fresh order after hearing the petitioner.
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2021 (7) TMI 1403
Levy of IGST - Appealable order or not - non-availability by petitioner by way of statutory remedy - petitioner argues that the assessment was made taking into consideration the maximum retail price and not the actual sale price - HELD THAT:- We are afraid that such issue ought to have been agitated before the appellate forum and do not make out any case of assessment without jurisdiction or in breach of principles of natural justice requiring invocation of writ jurisdiction of this Court and that too after a lapse of more than two years.
The Writ Petition is dismissed.
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2021 (7) TMI 1397
Seizure of goods alongwith vehicle - expired E-way bill - case of petitioner is that the E-way bill unfortunately expired as the vehicle could not travel within the prescribed time because of break-down - HELD THAT:- For whatever reasons, the goods, at the time of inspection, were found to be without valid documents as required by the GST Act. The proper Officer, therefore, started proceedings under Section 129 of the GST Act, which are not even culminated in the final order.
In the matter of M/S. PODARAN FOODS INDIA PRIVATE LIMITED VERSUS STATE OF KERALA, THE ASSISTANT STATE TAX OFFICER (SQUAD NO. I) , THE ASSISTANT STATE TAX OFFICER, COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT [2021 (1) TMI 552 - KERALA HIGH COURT], this court had already concluded the issue with the observations that I do not find any reason to interfere with the adjudication orders in Form GST MOV-9 impugned in the writ petition. The petitioner is relegated to his alternate remedy of preferring appeals against the said adjudication orders before the appellate authority under the Act. All contentions, legal and factual, are left open to be agitated by the petitioner before the appellate authority.
Petition disposed off.
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2021 (7) TMI 1393
Classification of supply - rate of tax - activity of transportation of coal from the mine to the railway siding at Pakur, till the time the railway siding is made operational at the mine - an independent activity or part of supply of mining service - exemption available to the applicant as 'transportation of goods by a person other than GTA' - liability to pay GST under RCM on the transportation services received from the transporters, as they are not issuing consignment note.
HELD THAT:- The price charged by the supplier for both the services are separately mentioned in the contract held in this regard. The bills/invoices are also separately raised in this regard. Moreover, none of the services can be considered as predominant over the other service. Both the services are important for the service recipient and accordingly invited tender and held contract for availing both the services. These services in any way cannot be considered as naturally bundled services as order of both the services can be awarded to separate service providers. Also they are not supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply nor are these services supplied made in conjunction with each other for a single price.
In this case it can be treated that the applicant has made an arrangement in place of consignment note by issuing different forms in their own style which they handover to the transporters and after delivery of the goods, weighment challans have been issued at railway siding which proves that goods have been delivered safely. After verification of the quantity, the payment is released to the transporters in due course as per the clauses of agreement - The purpose of issuing consignment note indicates that the lien on the goods has been transferred to the transporter and the transporter becomes responsible for the goods till its safe delivery to the consignee. In the present case also collective reading of Work Order awarded to the transporter with the requisite forms required to be filled/signed, makes it amply clear that the transporter becomes responsible for the goods till its safe delivery to the destination.
As per the provisions of Section 9(3) of the Act, the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both - the services rendered by the 'Goods Transport Agency' in short GTA falls under 'Reverse Charge Mechanism' (in short RCM) and the applicant is liable to pay GST on the same under RCM after appropriate valuation of the service.
GST applicable in this case has been covered under Entry 9(iii) of the Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 (Heading 9965), as amended, subject to conditions mentioned therein, i.e., a GST Rate of 5% will be applicable provided that credit of input tax credit charged on goods and services used in supplying the services has not been taken. However, Entry No. 9(iii) of the said Notification has been substituted vide Notification No. 20/2017-CT (Rate) dated 22.08.2017 for including an alternative GST Rate of 12%, provided that the transporters opted to pay so.
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2021 (7) TMI 1379
Demand of Service Tax - royalty payable under the Rajasthan Minor Mineral Concession Rules, 2017 - HELD THAT:- Division Bench of this Court in the case of UDAIPUR CHAMBERS OF COMMERCE AND INDUSTRY VERSUS THE UNION OF INDIA, THE SUPERINTENDENT, CENTRAL EXCISE AND OTHERS [2017 (10) TMI 975 - RAJASTHAN HIGH COURT] wherein a batch of cases where similar challenges have been made, ultimately were dismissed by the Division Bench of Principal Seat, Jodhpur.
This Division Bench of this Court has already rejected the writ application on the similar challenge - petition dismissed.
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2021 (7) TMI 1370
Maintainability of appeal - Admissibility of input tax credit - inward supply of local scrap and sponge iron used by the appellant for manufacture of M.S. billets - procedure adopted and the documents/records maintained by the appellant can be deemed to be a sufficient compliance of the conditions and restrictions or not - Section 16 of GST Act and Rule 36 of GST Rules - HELD THAT:- It is found that the first proviso to section 98(2) of CGST Act, 2017 is very clear, that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in case of an applicant under any of provisions of this Act.
Section 100(1) mandates that only a ruling pronounced under sub-section (4) of section 98 of CGST, Act, 2017 can be appealed before the Appellate Authority for Advance Ruling.
The instant application is not maintainable because it is covered in the first proviso to section 98(2) of the Act - Appeal dismissed.
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2021 (7) TMI 1369
Classification of supply - composite supply or individual supply - contracts towards construction, O&M and other ancillary contracts which are in relation to work entrusted to MPPGCL by the State Government - rate of GST applicable on Construction contracts awarded by MPPGCL which are in relation to work entrusted to MPPGCL by the State Government - rate of GST on O&M and other ancillary contracts awarded by MPPGCL which are in relation to work entrusted to MPPGCL by the State Government - Notification No.11/2017-CT(R) as amended.
HELD THAT:- In order to qualify for the concessional rate of tax @6% CGST + 6% SGST, under Entry No.(vi)(a) of Sr. No.3 of Notification No.11/2017-Cental tax (Rate) as amended, the main conditions to be fulfilled are that the contract involves composite supply as defined in Section 2(30) of CGST Act, 2017, the contract involves works contract as defined under section 2(119) of CGST Act, 2017 and such services are supplied to a Government Entity. In absence of complete contracts/work orders, it is not feasible to decide the nature of supply and GST rates for large number of contracts.
The ruling passed by the Authority of Advance Ruling need not be interfered in the present case - application dismissed.
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2021 (7) TMI 1368
Levy of GST on sub contractor - sub contractor executes works contract pertaining to dam, wherein the principal contractor is liable for tax @ 12%, for the period from 22-01-2017 to 25-01-2018 - HELD THAT:- Sub-section (2) of Section 70 is very clear that every such inquiry shall be deemed to be a “judicial proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code. Therefore, the appellant's contention that mere issue of such letter to them by DGGSTI authorities cannot be said to be any proceedings within the meaning of proviso to Section 98(2) of CGST Act, 2017, cannot be agreed upon.
For sub-contractors, subsequently the rate of tax for such services got reduced to 12% vide Notification No.1/2018- Central Tax (Rate) dated 25.01.2018. It was also informed that the said investigation in the matter is undergoing. As per the submission of appellant and available records, we find that Directorate General of Goods & Services Tax Intelligence (DGGSTI), Regional Unit, Indore, has already initiated proceeding against the appellant on the same question raised by the appellant before us and the said proceeding is still pending before the DGGSTI, Indore.
The first proviso to section 98(2) of CGST Act, 2017 is very clear, that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in case of an applicant under any of provisions of this Act - the Advance Ruling Authority has rightly rejected the appellant's application as per the first proviso to section 98(2) of CGST Act, 2017 on the grounds that the question raised by the appellant before the Authority is pending with the DGGSTI and proceeding against the appellant is underway by the DGGSTI, Regional Unit, Indore.
Section 100(1) mandates that only a ruling pronounced under sub-section (4) of section 98 of CGST, Act, 2017 can be appealed before the Appellate Authority for advance, Ruling. It is found that the Advance Ruling Authority in its Order 20/2020 has rejected the application of the appellant under section 98(2) of CGST, Act, 2017, and it cannot be said to be any advance ruling pronounced under sub-section (4) of section 98 of CGST, Act, 2017, therefore the appellants appeal fails on this count also.
The appeal filed by the appellant M/s Saisanket Enterprises stands dismissed on all accounts.
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2021 (7) TMI 1367
Scope of Advance Ruling application - Classification of services - health services provided by M/s AHEL - classification under 9983 & 9985 is correct or not - applicability of IGST Exemption Notification for all or certain items of contractual services rendered by M/s AHEL as per the MoU - refund of IGST with retrospective effect - If refund claim cannot be made with M/s AHEL, what is the relief available to SDSC SHAR for the ineligible financial expenditure incurred towards IGST so far? - applicability of GST on on diesel bills paid on reimbursement basis for running ambulance/power generator by M/s AHEL at SDMH, Sullurpeta.
HELD THAT:- An applicant can seek an advance ruling in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant. Further, as per Section 103 (1) of the APGST Act such an Advance Ruling is binding only on the applicant and on the Officer Concerned or the jurisdictional Officer in respect of the applicant.
In the present case the applicant is recipient of the services and not supplier of such services. Accordingly the application is not liable for admission and therefore rejected without going in to the merits of the case.
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2021 (7) TMI 1365
Exemption from GST - Mango Pulp/puree - can be treated as fresh fruit or not - whether the mango pulp/puree falls under the heading 20079910 or 0804 or 2008? - rate of tax payable on outward supplies of Mango fruit pulp/puree under the GST Act - HELD THAT:- In the instant case, the mangoes procured by the applicant are not marketed either in the same state or in frozen/chilled state of the same as fresh fruit. Hence, the entry under 0804 as claimed by the applicant is not applicable - It is evident from above that Headings 2007 and 2008 do not apply to the goods under discussion i.e., 'Mango Pulp/Puree' ,which are nothing but fruit pastes. Hence the claim of the applicant is non-applicable in the present context. The tariff rate of Mango Pulp had undergone changes over a period of time.
As there is no specific entry under GST tariff meant for this product 'mango pulp/puree', the entry no. 453 of Schedule -III of Notification No. 1/2017-Central Tax (Rate) dt: 28.06.2017 is applicable, which is a residuary entry covering goods which are not specified in Schedules I, II, IV, V, VI of the Notification, attracting the tax rate of 18%.
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2021 (7) TMI 1364
Concessional rate of GST - Composite supply of works contract - construction services provided by the applicant to APIIC - Government entity or not - applicability of GST at 12% as prescribed in SLNo.3(vi) of the Notification no. 11/2017- Central Tax (Rate) dated 28.06.2017, as amended - appropriate rate and classification of GST to be charged by the applicant - whether M/s. APIIC is a Government Authority/Entity or otherwise? - HELD THAT:- Andhra Pradesh Industrial Infrastructure Corporation Ltd. (APIIC) was formed in 1973 by GO No: 831 dated: 10.09.1973 issued by Government of Andhra Pradesh. As seen from the share holding ratios of the 41st Annual Report for the years 2013-2014 as made available by APIIC website https://www.apiic.in, the Government of Andhra Pradesh including its nominees have 100% of share holding and thus it is covered under the definition of 'Government Entity' under the above said provisions. Therefore, we conclude that M/s. APIIC is a “Government Entity” for the purpose of GST matters.
Whether the construction work in which the applicant is engaged in is meant for any business or otherwise? - HELD THAT:- The activities of M/s APIIC are business activities and not otherwise. The applicant claims that the works involved in the contract i.e., the RBF sheds are used by none other than the organisation (APIIC) itself. But a detailed examination of the activities of APIIC prove that the organisation runs on a business model as it would pass on any costs involved in its transactions to the end client. This would be sufficient enough to come to a conclusion that the said construction is for use of APIIC for conducting its activities, which are essentially business oriented and hence not eligible for concessional rate of 12% available under Notification No.24/2017 - CT (Rate) dated 21.09.2017.
The contract entered by the applicant is classifiable under SAC heading No. 9954 under construction services, with entry no (ii) of serial No.3 of notification no. 11/2017 Central Tax (Rate) dated 28.06.2017 i.e., Composite Supply of Works Contract as defined in clause 119 of Section 2 of Central Goods and Services Act, 2017 and the applicable rate of tax is 18%.
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2021 (7) TMI 1363
Exemption from GST - transaction of hiring/leasing of buses by the APSRTC to the Public Transport Division (PTD) of Government of Andhra Pradesh - applicability of Entry 22 of Notification No: 12/2017 Central Tax (Rate) - HELD THAT:- In the instant case, it is clear that the Government of Andhra Pradesh had created a separate undertaking under the name and style of 'Public Transport Department' (PTD) which will operate under the Administrative control of Transport, Road and Buildings Department - Thus, the 'Department of Public Transport' fits into the above definition of 'Undertaking', meant for 'Transport' carried by the State Government.
Thus, the transaction of hiring/leasing of buses by the APSRTC to the Public Transport Division (PTD) of Government of Andhra Pradesh is eligible for the exemption under Entry 22 of Notification No 12/2017 Central Tax (Rate).
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2021 (7) TMI 1362
Input Tax Credit - applicability of Time Limitation or not - tax invoice dated 01.04.2020 issued by the supplier of service for the rental service supplied for the period 01.04.2018 to 31.03.2019 - sub-section (4) of Section 16 of the CGST/SGST Act, 2017 - HELD THAT:- In the instant case the 'tax invoice' is issued by the lessor on 01.04.2020 for the services supplied in the financial year 2018-2019. For any transaction, the tax invoice is the primary document evidencing the supply and vital for availing input tax credit.
In the instant case, the invoice which was raised on 01.04.2020 does not pertain to that financial year of 2020-2021, but pertains to the financial year of 2018-2019 in which the services were received. Moreover, as per section 16(4) the applicant was mandated to claim input tax credit before the due date of furnishing of the return under section 39 for the month of September 2019 following the end of financial year 2018-2019 to which such invoice pertains or furnishing of the relevant annual return for the year 2018-2019, whichever is earlier.
In such a context, it is opined that the applicant is not entitled to take credit of input tax under section 16(4) as it does not fulfill the basic condition that the invoice should pertain to the financial year 2018-2019 where in the supplies are made and for which the tax invoices are supposed to be raised as prescribed by the act. Thus, Act necessitates the applicant to claim input tax credit as per the conditions prescribed under the act.
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2021 (7) TMI 1361
Works Contract or not - Contract with Andhra Pradesh Eastern Power Distribution Company Limited (APEPDCL) for extension of electricity lines taxability of the supply made by the applicant to APEPDCL relating to “Erection of S-Ph 16KVA DTRs, 6.3KV & LT lines to extend Grid supply to Tribal habitations which were already electrified with DDG Projects in Srikakulam and Visakhapatnam Circles on partial turnkey basis under Tribal Sub-Plan (TSP) - APEPDCL can be treated as a limb of Government of AP or not - rate of tax - SAC/HSN Code - HELD THAT:- On examination of Memorandum of Association of the APEPDCL Company, the main objects to be pursued by the Company on its incorporation are to engage in the business of procurement, supply and distribution of electricity; to take over the distribution and supply of electricity business from the Transmission Corporation of Andhra Pradesh Limited; to acquire business/companies; to acquire know-how etc. Thus, the incorporation of the company itself is based on business purposes. Thus, the services were provided by the applicant to a business entity i.e., APEPDCL in the present context. It is an undeniable fact that APEPDCL is not rendering any non commercial services but receiving payment/reimbursement for its commercial activity from the Government of A.P. in form of 100% grants.
Finally, even though APEPDCL has been considered as a 'Government entity', the services provided by the applicant are proved to be for the use of business purpose. Hence, The Applicant is not entitled for the benefit of concessional rate of GST @12% (6% under Central tax and 6% State tax) in terms of Notification No.24/2017-Central Tax (Rate) dated:21.09.2017 read with Notification No.31/2017-Central Tax (Rate) dated: 13.10.2017.
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2021 (7) TMI 1360
Classification of GST - processing of raw material by cutting/sawing into different sizes starting from 30CM X 30CM to 60CM X 90CM based on requirements of the customers and finally the product is used mainly for flooring in foreign countries - classified under the HSN code 25140000 or under the HSN code 6803000? - HELD THAT:- Basing on the applicant's description of the product and processes that it under goes, it is evident that the goods under dispute are slate stone that is trimmed and cut into sizes as per the requirement of the clients. After going through the photographic evidences submitted by the applicant, it is observed that there is no workmanship involved at any stage of the entire process of the making of the final product. The activity under taken by the applicant is just cutting/ sawing the slate stone into different sizes. Apart from cutting of the stone into standard pre determined sizes the applicant does not take up any other special activity.
Taking note of the factual position, it has been considered that the product under goes only 'processing' and retains its original character. At any point of time in the entire process it had neither under gone any 'manufacturing' activity involving workmanship nor had been transformed into a different commodity.
Thus, the said product can be classified under SI.No. 122 of Chapter / Heading / Sub-heading / Tariff item of 2514 "Slate, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape" vide notification no 1/2017-Central Tax (Rate) dt:28.06.2017.
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2021 (7) TMI 1359
Exemption from GST - Mango Pulp/puree - can be treated as fresh fruit or not - whether the mango pulp/puree falls under the heading 20079910 or 0804 or 2008? - rate of tax payable on outward supplies of Mango fruit pulp/puree under the GST Act - HELD THAT:- In the instant case, the mangoes procured by the applicant are not marketed either in the same state or in frozen/chilled state of the same as fresh fruit. Hence, the entry under 0804 as claimed by the applicant is not applicable - It is evident from above that Headings 2007 and 2008 do not apply to the goods under discussion i.e., 'Mango Pulp/Puree' ,which are nothing but fruit pastes. Hence the claim of the applicant is non-applicable in the present context. The tariff rate of Mango Pulp had undergone changes over a period of time.
As there is no specific entry under GST tariff meant for this product 'mango pulp/puree', the entry no. 453 of Schedule -III of Notification No. 1/2017-Central Tax (Rate) dt: 28.06.2017 is applicable, which is a residuary entry covering goods which are not specified in Schedules I, II, IV, V, VI of the Notification, attracting the tax rate of 18%.
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2021 (7) TMI 1344
Input tax credit - scope of Plant and Machinery - Whether the term 'other civil structure' used in the definition of 'Plant and Machinery' restricts the Land filling Pit from considering it as Plant & Machinery and thereby restricts ITC to be availed on it? - HELD THAT:- The analysis of the exclusions i.e. land, buildings or any other civil structures, telecommunication towers and pipelines would definitely not form part of machineries and would definitely fall under the category of “fixed assets” in the form of “plant”. Hence when these are excluded, definitely they are excluded from the claim of input tax credit even if they are plant in the general sense of business. The applicant has explained that the structure is covered under “plant” and this may be acceptable in the general sense, but in case of the present law, civil structures are not “plant” for the purpose of Chapter related to Input tax credit and Chapter VI. The case laws referred by the learned Advocate are all used to claim that the structure is a “plant” and that is acceptable in the general sense, but for the specific purpose of Chapters V and VI of the GST Act, they would be kept out of the category of “plant”.
Whether the pit is a civil structure or not. It is very clear that the applicant has used materials like steel, cement, bricks and claims that they are not used for the land filling pit? - HELD THAT:- The applicant is purchasing the construction materials for other than the construction of land filling pits. If they are used for construction of other structures, they would have been done on his own account and the input tax credit would not be available on those input tax credit related to those materials as per section 17 (5) (d) as they would still be civil structures (other than pits). Since those civil structures are not being used directly in relation to the main business activity, they would not be covered under the definition of “plant” even generally (other than for the purpose of GST). Furthermore, civil structures are excluded even if they are generally covered under plants, for the purpose of GST.
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2021 (7) TMI 1339
Violation of the principles of natural justice - an opportunity of personal hearing as contemplated u/s 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017 not provided - HELD THAT:- Admittedly, the petitioner has not filed reply within the time nor sought for personal hearing as per Section 75(4) of the Act. But, equally when the authorities decided to pass adverse orders, then, necessarily personal hearing has to be given as per the judgment in G.V. COTTON MILLS (P) LTD. VERSUS THE ASSISTANT COMMISSIONER (CT) AVARAYAMPALAYAM ASSESSMENT CIRCLE, COIMBATORE [2018 (3) TMI 1617 - MADRAS HIGH COURT], but in the present case, no such opportunity of personal hearing has been given to the petitioner and therefore, considering the present facts and circumstances of the case and in the interest of justice, one more opportunity to the petitioner herein is to be granted.
The matter is remanded back to the respondent for fresh consideration after giving reasonable opportunity including the personal hearing as contemplated under Section 75(4) of the TNGST Act, 2017 and then pass appropriate orders in accordance with law - petition allowed by way of remand.
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2021 (7) TMI 1337
Seeking grant of Interim relief - HELD THAT:- Taking into consideration the provisions of Section 16 of the GST Act, this Court is of the opinion that prima facie, a strong case for grant of interim relief has been made out. Accordingly, there shall be stay of the effect and operation of the impugned order dated 15.10.2020 (Annexure P-1) till next date of hearing.
List the case after 3 weeks.
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2021 (7) TMI 1313
Seeking grant of bail - availment of wrongful ITC - transfer of fake ITC Bills - dispute is from November 2017 to March 2019 - HELD THAT:- From the investigation done by the Department, it is evident that there was no movement of goods done by the petitioner and fake invoices were generated in order to avail the ITC and in order to pass on the ITC to various entities, the fake bills which were generated by the petitioner is to the tune of ₹ 44 Cr.
The bail application need not be interfered - bail application dismissed.
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