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2020 (6) TMI 559
Maintainability of the Writ Petition - whether IGRP of the First Respondent has jurisdiction to re-examine the complaint of the Third Respondent pursuant to the direction issued by the Second Respondent after having arrived at the conclusion that the admissible claim of the Third Respondent against the Petitioner was 'NIL' and relegated the parties to take further course of action under the Exchange Regulations in the earlier order dated 18.10.2016, which has attained finality having remained unchallenged in the manner recognized by law - HELD THAT:- There cannot be any doubt that the attempt to re-examine the complaint of the Third Respondent against the Petitioner by IGRP of the First Respondent without any specific provision to that effect in IGRM devised by the Second Respondent in Circular No. CIR/MRD/ICC/30/2013 dated 26.09.2013, which certainly amounts to re-litigation, is barred. Inasmuch as the earlier adjudication in IGRP of the First Respondent, which culminated in its order dated 18.10.2016, does not suffer from any procedural defect, the question of invoking the inherent powers to re-open the proceeding does not arise. Though a faint plea is made by the Third Respondent that the Petitioner has played a fraud on him, the letter dated 04.10.2018 issued by the Second Respondent to the First Respondent to re-examine the complaint of the Third Respondent does not suggest of the same. What has been mentioned therein is that the Second Respondent has independently examined the complaint and those findings are examined to initiate appropriate measure as per regulation.
A preliminary opinion and no definite conclusion on the culpability of the Petitioner has been expressed to treat that any fraudulent act has been committed by the Petitioner against the Third Respondent. As such, it is not possible to uphold the re-examination of the complaint on the ground of exercise of inherent powers for any act of fraud committed by the Petitioner against the Third Respondent.
There is nothing which precludes the Third Respondent to rely on any new evidence which has come to his knowledge after the order dated 18.10.2016 passed by IGRP of the First Respondent in arbitration, which is in the nature of an original proceeding. It is needless to add here that no view has been expressed by this Court on the merits of the disputes between the Third Respondent and the Petitioner, and no authority shall be inhibited or influenced by any of the observations made in this order while adjudicating the same.
The letter dated 04.10.2018 sent by the Second Respondent to the First Respondent insofar as it suggests that IGRP of the First Respondent may re-examine the complaint of the Third Respondent, is quashed as without jurisdiction and the First Respondent shall be restrained from continuing with the IGRP proceedings initiated in pursuance thereof. It is needless to clarify here that it is for the Second Respondent to exercise its powers conferred under the statute to first make necessary amendments to IGRM so as to create provision for review of an earlier decision of IGRP of a stock exchange, if it so intends, and thereafter require the First Respondent to act in furtherence thereof.
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2020 (6) TMI 558
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - failure to comply the statutory provision of Section 9(3)(b) of the Code - time limitation - HELD THAT:- On perusal of e-mail correspondence dated 19th January 2018 and 09th April 2018 it is clear that the Operational Creditor has issued the statement of account of pending invoices as on January 19, 2018. This statement pertains to the financial year 2015-16, 2016-17 and 2017-18. In reply to the said mail, the Corporate Debtor has submitted that the account had already been settled with Mr Anumod Sharma and further no services were required. It also transpired that the Corporate Debtor raised a question on raising the bill for the year 2017-18, partially for the year 2016-17. It is also apparent that the Corporate Debtor advised to the Operational Creditor not to raise, such kind of bills and take clarity from Mr Anumod Sharma, as the Company is not liable for the same - Thus, it is clear that before issuance of demand notice there was a pre-existing dispute regarding raising of invoices for the financial year 201718, and partially for 2016-17, on the pretext that the Corporate Debtor had already informed that no services were required.
In the instant case, after receiving the demand notice Corporate Debtor within ten days of receipt of the demand notice raised the dispute of the unpaid operational debt. Therefore, affidavit in compliance of Section 9(3)(b) could not be submitted. Thus, it is apparent that there is no default in not providing the affidavit in compliance of Section 9(3)(b) of the Code.
Time Limitation - HELD THAT:- On perusal of the record, it is crystal clear that about one year before the issuance of demand notice, the Corporate Debtor complained about the quality of service to the Operational Creditor and communicated that he has not provided services after 2015 and also informed that their services are no longer required.
Thus, the Adjudicating Authority/National Company Law Tribunal, New Delhi Bench has rightly rejected the Application filed under Section 9 of the Insolvency and Bankruptcy Code 2016 - appeal dismissed.
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2020 (6) TMI 557
CIRP process - application was admitted by the Adjudicating Authority by impugned Order dated 22nd October, 2019, against Corporate Debtor, the present Appeal by Director of the suspended Board of Corporate Debtor - dispute of limitation - Tribunal has concluded that a Decree cannot be executed by resorting to Application under Section 7 and the debt does not become in default when Judgment and Decree is passed by DRT - HELD THAT:- It is clear from the judgments of Hon'ble Supreme Court referred by this Tribunal in the matter of SH G ESWARA RAO VERSUS STRESSED ASSETS STABILISATION FUND, M/S SARITHA SYNTHETICS AND INDUSTRIES LTD. [2020 (5) TMI 424 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] that the applicable provision is Article 137 of the Limitation Act 1963 and the relevant date is date of default for the purpose of Application under Section 7 or Application under Section 9 of Insolvency and Bankruptcy Code, 2016. Once, the time starts running, subsequent filing of the Application to DRT and judgment passed by DRT does not make a difference, for the purposes of provisions of I&B Code.
We further reject the submission that because in Section 3(10) of I&B Code in definition of "Creditor" the "decree holder" is included it shows that decree gives cause to initiate application under Section 7 of I&B Code. Section 3 is in Part I of I&B Code. Part II of I&B Code deals with "Insolvency Resolution And Liquidation For Corporate Person", & has its own set of definitions in Section 5. Section 3 (10) definition of "Creditor" includes "financial creditor", "operational creditor" "decree-holder" etc. But Section 7 or Section 9 dealing with "Financial Creditor" and "operational creditor" do not include "decree-holder" to initiate CIRP in Part II.
The impugned order passed by Adjudicating Authority is set aside and the Application under Section 7 of I&B Code filed by the Respondent is dismissed - appeal allowed.
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2020 (6) TMI 556
Institution of suit or other legal proceedings on behalf of the 'Corporate Debtor' under Liquidation - jurisdiction of NCLT ordering Liquidation - HELD THAT:- From clause (d) of section 11, it is clear that a 'Corporate Debtor' in respect of whom a liquidation order has been made is not entitled to make application to initiate 'Corporate Insolvency Resolution Process' under Chapter II. That means, it cannot file any application under section 7 or 9 of the I&B Code. Therefore, no application under Chapter II can be filed by the 'Corporate Debtor', which is under Liquidation of which the Appellant is Liquidator. In so far as, sub-section (5) of section 33 is concerned, it is subject to section 52. Section 52 relates to right of secured creditor in liquidation proceedings.
If the Adjudicating Authority has refused to grant permission to file application under section 9 of the I&B Code, we are not inclined to interfere with the impugned order dated 30th May, 2019 - Appeal dismissed.
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2020 (6) TMI 555
Disciplinary Action against the Insolvency Resolution Professional (IRP) - Contravention of provisions of the Code, Regulations, and directions issued thereunder on the part of Insolvency Professional - Regulation 11 of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016 read with Section 220 of the Insolvency and Bankruptcy Code, 2016 (Code) - HELD THAT:- A key supporting institution under the Code is insolvency profession. An IP exercises the powers of the Board of Directors of the firm under resolution, manages its operations as a going concern, and complies with applicable laws on behalf of the firm. He conducts the entire insolvency resolution process: he is the fulcrum of the process and the link between the Adjudicating Authority and stakeholders - debtor, creditors - financial as well as operational, and resolution applicants. The process culminates in a resolution plan that maximises the value of assets of the firm. This presupposes availability of many competing resolution plans and identifying the best of them. The key is generation of many promising resolution plans. This requires provision of and access to complete and accurate information about the firm for prospective resolution applicants and continued operation of the firm.
The Code casts this duty on the IP. He organises all information relating to the assets, finances and operations of the firm, receives and collates the claims, prepares information memorandum, and provides access to relevant information, so that there is complete symmetry of information among the entitled stakeholders, while maintaining confidentiality. He thus addresses the market failure arising from information asymmetry. The resolution balances the interests of the stakeholders. This requires the services of a third person who does not side with any stakeholder and has no conflict of interests. The law casts this duty on the IP and makes several provisions to ensure his integrity, objectivity, independence and impartiality. It also requires him to be a fit and proper person. Given the responsibilities, an IP requires the highest level of professional excellence.
DC observes that Mr. Aran Kumar Gupta displayed a casual approach during the conduct of CIRP. When a CD is admitted into CIRP, the Code shifts the control of a CD to creditors represented by a CoC for resolving its insolvency. The CoC holds the key to the fate of the CD and its stakeholders. Thus, several actions under the Code require approval of the CoC.
The RP has displayed utter misunderstanding of the provisions of the Code and Regulations made thereunder. He has contravened the provisions.
The DC is conscious of the fact that the profession of IP is in a stage in which IPs are striving to learn. Even though it is incumbent upon them to build and safeguard the reputation of the profession which should enjoy the trust of the society and inspire confidence of all the stakeholders, they may not be kept away from practicing the profession especially in the absence of any malafide intention and more so when the objective of the Code i.e. resolution has been achieved within the prescribed timelines.
The RP is hereby warned to be extremely careful and diligent while performing his duties under the Code. Further, he must strictly act in accordance with the provisions of law and similar contraventions shall not be repeated.
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2020 (6) TMI 554
Validity of SCN - Intellectual property service - appellant had incurred various expenses which were recorded in their accounts as “Foreign Expenses (Miscellaneous Foreign Expenses)” - period 2006-07 to 2007-08 - Case of appellant is that the SCN is so vague that it does not even specify the taxable service for which these demands were made - HELD THAT:- The appellant has not been put to notice alleging that they have either rendered a taxable service which made them liable to pay service tax or have received any taxable service from overseas service provider, which rendered them liable to service tax under the reverse charge mechanism. As the show cause notice is very vague and wants to charge service tax only on the ground that the appellant had made some payments to their overseas counterparts, the impugned order needs to be set aside.
If the allegations in the show cause notice are true, the department could have undertaken more serious investigations using all the powers available to the officers under the law including taking legal action against anyone dishonouring the summons. However, this cannot be a ground to issue a show cause notice without clarifying under what head the tax has to be paid and for which taxable services received by the appellant. The impugned order confirming demands made in such a nebulous show cause notice is bad in law and cannot sustain and needs to be set aside.
Appeal allowed - decided in favor of appellant.
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2020 (6) TMI 553
Pending appeal or not - HELD THAT:- Since, it is submitted by the learned Advocate for the petitioner that service has already been effected upon the respondents, the respondents are at liberty to file affidavit-in-opposition within a period of three weeks from date, affidavit-in-reply thereto, if any, be filed within two weeks thereafter.
Matter to appear in the monthly list for the month of August, 2020 under the heading ‘for hearing’. In the meantime without prejudice to the rights and contentions of both parties, the petitioner shall deposit a sum of ₹ 15 lakhs with the learned Registrar General of this Court by a bank draft within 15 (fifteen) days from date.
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2020 (6) TMI 552
Demand of Central Excise Duty - demand against the appellant on the ground of denial of self-credit by denying the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 to the appellant - HELD THAT:- In this matter, the demand has been raised consequent to denial of exemption Notification No.01/2010-CE dt. 6.2.2010 by the Commissioner (Appeals). As the said order of the Commissioner (Appeals) has already been set aside by this Tribunal vide order dt.20.5.2019, in that circumstance, the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 is available to the appellant. Therefore, the proceedings were not warranted against the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (6) TMI 551
Maintainability of appeal - failure to make pre-deposit as per Section 62(5) of the Punjab Value Added Tax Act, 2005 - request for waiver of pre-deposit - HELD THAT:- The petitioner had exercised the right of appeal which is subject to the condition. The mere fact that its account has been declared as Non- Performing Asset would not empower the Appellate Authority to waive off pre-deposit - The petitioner has failed to make out any case for interference under Article 226 of the Constitution of India.
Petition dismissed.
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2020 (6) TMI 550
Maintainability of Review Petition - time limitation - no sufficient ground has been given in the Application for condonation of delay - HELD THAT:- There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay. The issue that the assessment was not finalised within the reasonable time is not a pure question of law but would depend upon the factual aspect of each case.
In the present case, apart from six months prescribed limitation, there is delay of 505 days, the explanation put forth is not worth acceptance.
Appeal dismissed.
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2020 (6) TMI 549
Classification of goods - Black Disinfectant Fluid (BDF) - whether covered by Entry 25 of Schedule C of HVAT Act and is therefore leviable to tax at concessional rate as Schedule C item, whereas the Entry 25 of the HVAT Act deals with specific items and BDF does not found mentioned therein - HELD THAT:- The conclusion arrived at by the Tribunal is in consonance with common parlance test. The assessee produced letter dated 7.1.2016 received from the Assistant State Drug Controller, Haryana under the Right to Information Act,2005. The letter stated that BDF is manufactured under Schedule O of the 1940 Act and falls in the category of 'drugs' defined in Section 3(b) of the said Act. The information is provided by the official of the office dealing with the said product and issuing licence under the 1940 Act for manufacture of BDF - There is no contradiction by the State to the contention that BDF is used as a disinfectant to sterilize houses, hospitals, veterinary hospitals etc. and that the product is also applied to the wounds of animals to kill maggots, worms etc. in the wounds.
The case of the appellant is that BDF be treated to be covered under the residuary entry. The contention lacks merit. Resort to residuary entry can only be made if the product is not covered under a specific Entry - BDF is covered under Entry 25 of Schedule C of the 2003 Act.
No interference is called for in the order of the Tribunal - Appeal dismissed.
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2020 (6) TMI 548
Rate of tax - classification of goods - sales of ‘sports shoes’ and ‘sports apparel’ - whether taxable under Entry 46 and Entry 52 of IV Schedule respectively, or they fall under the residuary entry falling under V Schedule? - HELD THAT:- The term ‘Footwear’ in Entry 46 of IV Schedule includes ‘sports shoes’ and the D.C.T.O.- II (Enforcement Wing) could not have held that they fall under residuary entry under V Schedule, and he ought to have held that they fall under Entry 46 of IV Schedule; and the Tribunal was right in not only relying on the certificates of the suppliers that the shoes were made of plastic but also on the Government Memo dt.17.10.2008 holding that ‘moulded plastic footwear’ described in Entry 46 also includes not only the ‘footwear’ of one moulded plastic piece but also more than one piece moulded and joined together. When the Department authorities did not make any product verification, they could not have changed the classification of the ‘sports shoes’ from Entry 46 in Schedule IV, which they had been doing for the previous ten years, to the residuary Entry in V Schedule.
Sports Apparel - HELD THAT:- The word ‘garments’ in Entry 52 of IV Schedule is of wide import and ‘sports apparel’ would fall under the said entry and the Tribunal did not commit any error in taking that view.
Revision dismissed.
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2020 (6) TMI 547
Rate of Tax - Instrument Cooling Fan - whether taxed under the heading Schedule-II(B)-3 taking it to be a part of larger equipment for communication, or under the residuary clause, taking it to be an electrical equipment - justification of the reassessment proceedings by the Revenue Authorities and the orders passed therein.
HELD THAT:- The powers which have been given to the Commissioner for opening a reassessment even beyond a period of “three years” under sub-section 4 of Section 29 of the Act, where the Commissioner can initiate reassessment proceedings on his own or when he is satisfied with the reasons recorded by the Assessing Authority. In the present case the reassessment proceeding has been initiated on the basis of the reasons recorded by the Assessing Authority. The Assessing Authority had to assign reasons under sub-section (1) of Section 29 of the Act, which is grounded on the basic foundation of “reasons to believe” - the net result would be that even if the reassessment proceedings under the VAT Act can be initiated on the basis of a “change of opinion” of the Revenue Authorities, this must first satisfy the jurisprudence foundation contained in sub-section (1) of Section 29 of the Act, which is that the Authority must have “reasons to believe”, that such an reassessment should be done. This can only be done when he gives a clear cut finding and reasons as to why reassessment is being done. If he has “reason to believe” then he can change his opinion. But reasons must come first.
There is no rebuttal of the petitioner’s claim at any level that the product which he is selling is only a part of telecommunication system and although it is a cooling fan, it cannot be used in any other way but for cooling a telecommunication system. It is hence a part of telecommunication system, though independently it may still be classified for other purposes as an “electric good” - The provision which the petitioner relies upon is Sl. No. 3 of Schedule II (B) of the Uttarakhand Value Added Tax Act, 2005, which relates to a telecommunication system and then it gives a break up of the same and finally adds “and parts thereof”. Being a part of a telecommunication system an “instrument cooling fan” has to be taxed under this clause at 4.5%.
It is a settled principle of law that if an item or entry clearly comes under one of the Schedules given in the fiscal law, where the rate of tax is to be determined, then it should not be relegated to the residuary clause. In this case the goods in question is categorically a part of telecommunication equipment and therefore it could have been charged only under entry no. 3 of Schedule II and not under the residuary clause.
Petition allowed.
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2020 (6) TMI 546
VAT on sale of Duty Entitlement Pass Book (DEPB) - Transaction took place in Tamil Nadu or Maharashtra - Ascertained goods or not - It is the petitioners' case that the asset in question constitutes specific and ascertained goods. Mr.Haribabu however, points out that the DEPB is categorised in Entry 70/Part B/ First Schedule to the Act as intangible goods along with copyright, patent and REP licence and is thus, according to him, unascertained - HELD THAT:- Explanation (V)(a)(i) provides that the sale or purchase of specified/ascertained goods shall be deemed to have taken place in the State if the goods are within the State at the time when the contract of sale or purchase is entered into. There being no dispute on the position that the goods in question, the DEPB, and additionally, the seller as well as the buyer were all located in Bombay at the time when the transaction in question was finalised, the turnover from the transaction is liable to tax only in Maharashtra.
The sole argument of the Revenue is that the petitioner is an exporter, exporting and importing from the Tuticorin Port. Clause 4.3.4 of the Foreign Trade Policy containing the DEPB Scheme makes it clear that the passbook is issued only in regard to a specified Port, which in this case is Tuticorin. This then is the only nexus which the State of Tamil Nadu has to the transaction in question and in my considered view, is insufficient to bring the transaction to tax in Tamil Nadu.
In the present case, we are concerned with a tangible asset, insofar as the right in connection with the export has been reduced to a passbook, constituting specified goods - The categories of specific/ascertained goods and unascertained/future goods are separate and distinct from tangible and intangible goods. The assets may be tangible or intangible on the one hand, also simultaneously being specific/unascertained on the other.
Petition allowed.
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2020 (6) TMI 545
Dishonor of Cheque - dispute is with regard to the actual amount borrowed and the period during which it was borrowed - legally enforceable debt or not - HELD THAT:- The trial court and also the appellate court has appreciated the facts and circumstances in a correct perspective and there is no illegality or irregularity in the finding of guilt under Sec.138 of the N.I.Act.
Sentence - HELD THAT:- The sentence passed by the V Additional Sessions Judge, Ernakulam is to undergo simple imprisonment for three months and to pay compensation for ₹ 1,00,000/- in default to undergo simple imprisonment for two months - the sentence passed is modified to fine of ₹ 1,00,000/- in default to undergo simple imprisonment for three months. Fine amount, if realized, shall be paid to PW1 complainant as compensation under Sec.357(1)(b) Cr.P.C.
Revision allowed in part.
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2020 (6) TMI 544
Exemption from Service Tax - business of providing services in relation to transportation of goods from Magdalla Port to the General Lighterage Area (Anchoring Point of Mother Vessel) or vice versa - covered under exemption contained at Sr. No. 18 of Notification No. 12/2017Central Tax (Rate) or not - covered in the definition of ‘Inland waterways’ - HELD THAT:- The applicant is providing service relating to transportation of goods in the water way, i.e. from Magdalla Port to its General Lighterage Area (Anchoring Point of Mother Vessel) or vice versa. This waterway is a part of the Arabian Sea. Whereas, the term “Other waterway on any inland water” covers any canal, river, lake or other navigable water within a State only. The length of the waterway, between which the service of transport is performed by the applicant, is the part of the “Arabian Sea” and not a part of any canal, river, lake or other navigable water within a State. Thus, their contention, that the transportation is being done on the River Tapi, appears to be incorrect.
As regard the contention that the entire activity is being done by them under territorial water only, it is worthwhile to mention that the Arbian Sea is not a part of the State of Gujarat and, hence, not covered under the term “Other waterway on any inland water” so as to be eligible for exemption of the Services by way of transportation of goods by inland waterway - the service of transportation of goods in barrages from mother vessel to daughter vessel from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port does not get covered in the definition of ‘other waterway on any inland water’, as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917.
Thus, the service of transportation of goods in barrages from mother vessel to daughter vessel from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port is neither covered in the definition of ‘national waterways’, as defined in Clause (h) of section 2 of the Inland Water Ways Authority of India Act, 1985 nor covered in the definition of ‘other waterway on any inland water’, as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917. Consequently, the same does not qualify for exemption contained at Sr. No. 18 of the Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017.
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2020 (6) TMI 543
Exemption from Service Tax - ‘Inland waterways’ - business of providing services in relation to transportation of goods from Magdalla Port to the General Lighterage Area (Anchoring Point of Mother Vessel) or vice versa - covered under exemption contained at Sr. No. 18 of Notification No. 12/2017Central Tax (Rate) or not - covered in the definition of ‘Inland waterways’ - HELD THAT:- The applicant is providing service relating to transportation of goods in the water way, i.e. from Magdalla Port to its General Lighterage Area (Anchoring Point of Mother Vessel) or vice versa. This waterway is a part of the Arabian Sea. Whereas, the term “Other waterway on any inland water” covers any canal, river, lake or other navigable water within a State only. The length of the waterway, between which the service of transport is performed by the applicant, is the part of the “Arabian Sea” and not a part of any canal, river, lake or other navigable water within a State. Thus, their contention, that the transportation is being done on the River Tapi, appears to be incorrect.
As regard the contention that the entire activity is being done by them under territorial water only, it is worthwhile to mention that the Arbian Sea is not a part of the State of Gujarat and, hence, not covered under the term “Other waterway on any inland water” so as to be eligible for exemption of the Services by way of transportation of goods by inland waterway - the service of transportation of goods in barrages from mother vessel to daughter vessel from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port does not get covered in the definition of ‘other waterway on any inland water’, as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917.
Thus, the service of transportation of goods in barrages from mother vessel to daughter vessel from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port is neither covered in the definition of ‘national waterways’, as defined in Clause (h) of section 2 of the Inland Water Ways Authority of India Act, 1985 nor covered in the definition of ‘other waterway on any inland water’, as defined under Clause (b) of Section 2 of the Inland Vessel Act, 1917. Consequently, the same does not qualify for exemption contained at Sr. No. 18 of the Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017.
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2020 (6) TMI 542
Benefit of reduced rate - houses constructed with a carpet area of 60 square metres per house - Entry Number 3(v)(da) of the Notification No.11/2017-Central Tax (Rate) as amended by Notification No.01/2018-Central Tax (Rate) dated 25.01.2018 - HELD THAT:- The applicant has not fulfilled the condition mentioned at Para-10 above and therefore the benefit of Entry No.3(v)(da) of Notification No:11/2017-Central Tax(Rate) dated 28.06.2017 (as amended by Notification No.01/2018-Central Tax (Rate) dated 25.01.2018)is not applicable to them.
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2020 (6) TMI 541
Determination of the liability to pay Tax - sales of Gas sold in Bottle to Commercial Customer and Gas sold in Bottle to Domestic Customer - eligibility of ITC @ 18% eligible on Purchases of LPG Gas (bulk) through Tanker - HELD THAT:- The applicant would be liable to pay 18% GST (9% SGST + 9% CGST) on the LPG sold by them to their Commercial Customers. They would be liable to pay 18%(9% SGST + 9% CGST) on the LPG sold to their Domestic Customers for the period upto 24.01.2018 and 5% (2.5% SGST + 2.5% CGST) on the LPG sold to their Domestic Customers with effect from 25.01.2018 onwards.
Input Tax Credit - HELD THAT:- Input tax determined under sub- rule (1) shall not be required to be calculated finally on completion or first occupation of an RREP which underwent transition of input tax credit consequent to change of rates of tax on 1st April, 2019 in accordance with notification No. 11/2017- Central Tax (Rate), dated the 28th June, 2017, published vide GSR No. 690(E) dated the 28th June, 2017, as amended - the applicant is eligible to take the entire input cenvat credit @ 18% on purchases of LPG Gas in bulk through Tanker subject to the fulfilment of the conditions/provisions (wherever applicable) for taking input tax credit as envisaged in Sections-16, 17 and 18 of the CGST Act, 2017 and Rules-36, 37, 40, 41 and 42 of the CGST Rules, 2017.
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2020 (6) TMI 540
Classification of Services - Contract with Railtel Corporation of India ltd. - whether the service will fall under the Notification 24/2017-Central Tax (Rate) Sr.No.3(iv)-Construction Service or Original Work to Government Authority - rate of tax - whether taxable at 12% or not - Government entity or not - HELD THAT:- The contract is for construction, erection, commission, installation and completion of original work. The contract is a new construction and involves excavation of trenches and laying of Optical Fibre Cables(OFC) through ducts, testing, commissioning of OFC and maintenance in the 03 blocks in Nakhatrana and Abdasa of Kachchh district, thus involves erection, commissioning and installation of equipment or structures and thus the second condition is satisfied.
Whether the person to whom the applicant is providing the work/service is covered under the definition of ‘Government Authority’ or ‘Government Entity’? - HELD THAT:- The applicant is executing the work for M/s. Railtel Corporation of India ltd.(on behalf of Bharat Broadband network ltd.) which is a Government of India undertaking with 90 percent or more participation by way of equity or control. However, in order to fulfil the definition of being a ‘Government Authority’, the work carried out by the applicant for M/s. Railtel Corporation of India ltd. should be any function entrusted to a Municipality under Article 243 W of the Constitution or to a Panchayat under Article 243 G of the Constitution.
Whether the civil structure that has arisen or come into existence as a result of the work executed/service provided by the applicant for M/s. Railtel Corporation of India ltd. i.e. optical fiber cables laid under the ground is meant predominantly for use other than for commerce, industry, or any other business or profession as envisaged in 3(vi)(a) of Notification No.24/2017-Central Tax(Rate) dated 21.09.2017? - HELD THAT:- The work done by the applicant for M/s. Railtel Corporation of India ltd. involves digging of trenches and laying of optical fiber cables for the purpose of supply of internet connection to the Gram Panchayat. However, it cannot be construed that the optical fiber cables laid underground are meant predominantly for use other than for commerce, industry, or any other business or profession - The said explanation clause is not applicable in the instant case as these are not activities undertaken by the Central government, State Government or a local authority but are undertaken by M/s. Railtel Corporation of India(on behalf of M/s. Bharat Broadband network ltd.) through the applicant.
Any activity of trade, commerce, manufacture etc. or any other similar activity is included in the definition of business and it is immaterial whether it is done for a pecuniary benefit, and any activity done in connection with or incidental or ancillary to such activity is also included in the scope of ‘business’ - the applicant in the course of providing work contract service to M/s. Railtel Corporation of India ltd. (on behalf of M/s. Bharat Broadband Network ltd.) is involved in the laying of trenches and laying optical fiber cables (goods) through which they are providing/supplying internet connectivity to the gram panchayats. However, it cannot be construed that the optical fiber cables laid underground are meant predominantly for use other than for commerce, industry, or any other business or profession as stated by the applicant.
The work done by the applicant under the contract with M/s. Railtel Corporation of India ltd. does not fall under the Notification No.24/2017-Central Tax (Rate) Sr. No.3(vi)-Construction Service of Original Work to Government Authority.
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9911796707
